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Annexure VIII-b 91
CONDITIONS OF CONTRACT
FOR WORKS OF CIVIL
ENGINEERING
CONSTRUCTION
PART I GENERAL CONDITIONS
FOURTH EDITION 1987
Reprinted 1988 with editorial amendments
Reprinted 1992 with further amendments
Annexure VIII-b 92
Published by
Federation Internationale Des
Ingenieurs-Conseils (FIDIC)
PO Box 86
CH 1000 Lausanne 12
Switzerland
Tel: +41 21 653 50 03
Fax: +41 21 653 54 32
Copyright FIDIC 1987
Reprinted 1988
With editorial amendments
Reprinted 1992
further amendments
All rights reserved
No part of this publication may be
Produced or transmitted in any
form or by any means without
permission of publisher
Produced for FIDIC by
Rhys Jones Consultants.
London UK
Annexure VIII-b 93
CONTENTS
PART I: GENERAL CONDITIONS
Definitions and Interpretation
1.1 Definitions
1.2 Headings and Marginal Notes
1.3 Interpretation
1.4 Singular and Plural
1.5 Notice, Consents, Approvals, Certificates and Determinations
Engineer and Engineer’s Representative
2.1 Engineer’s Duties and Authority
2.2 Engineer’s Representative
2.3 Engineer’s Authority to Delegate
2.4 Appointment of Assistants
2.5 Instructions in Writing
2.6 Engineer Act Impartially
Assignment and Subcontracting
3.1 Assignment of contract
4.1 Subcontracting
4.2 Assignment of Subcontractors’ obligations
Contract Documents
5.1 Language/s and Law
5.2 Priority of Contract Documents
6.1 Custody and Supply of Drawings and documents
6.2 One Copy of Drawings to be Kept on site
6.3 Disruption of Progress
6.4 Delays and Cost of Delay of Drawings
6.5 Failure by contractor to Submit
7.1 Supplementary Drawings and Instructions
7.2 Permanent Works Designed by Contractor
7.3 Responsibility Unaffected by Approval
General Obligations
8.1 Contractor’s General Responsibilities
8.2 Site Operations and Methods of Construction
9.1 Contract Agreement
10.1 Performance Security
10.2 Period of Validity of Performance Security
10.3 Claims under Performance Security
11.1 Inspection of Site
12.1 Sufficiency of Tender
12.2 Not Foreseeable Physical Obstruction or Conditions
13.1 Work to be in Accordance with Contract
14.1 Programme to be Submitted
14.2 Revised Programme
14.3 Cash Flow Estimate to be Submitted
Annexure VIII-b 94
14.4 Contractor not Relieved of Duties or Responsibilities
15.1 Contractor’s Superintendence
16.1 Contractor’s Employees
16.2 Engineer at Liberty to Object
17.1 Setting-out
18.1 Boreholes and Exploratory Excavation
19.1 Safety, Security and Protection of the Environment
19.2 Employer’s Responsibilities
20.1 Care of Works
20.2 Responsibility to Rectify Loss or Damage
20.3 Loss or Damage Due to Employer’s Risks
20.4 Employer’s Risks
21.1 Insurance of Works and Contractor’s Equipment
21.2 Scope of Cover
21.3 Responsibility for Amount not Recovered
21.4 Exclusions
22.1 Damage to Persons and Property
22.2 Exceptions
22.3 Indemnity by Employer
23.1 Third Party Insurance (including Employer’s Property)
23.2 Minimum Amount of Insurance
23.3 Cross Liabilities
24.1 Accident or injury to Workmen
24.2 Insurance Against Accident to Workmen
25.1 Evidence and Terms of Insurances
25.2 Adequacy of Insurances
25.3 Remedy on Contractor’s Failure to Insure
25.4 Compliance with Policy Conditions
26.1 Compliance with Statues, Regulations
27.1 Fossils
28.1 Patent Rights
28.2 Royalties
29.1 Interference with Traffic and Adjoining Properties
30.1 Avoidance of Damage to Roads
30.2 Transport of Contractor’s Equipment or Temporary Works
30.3 Transport of Materials or Plant
30.4 Waterborne Traffic
31.1 Opportunities for Other Contractors
31.2 Facilities for Other Contractors
32.1 Contractor to Keep Site Clear
33.1 Clearance of Site on Completion
Labour
34.1 Engagement of Staff and Labour
35.1 Returns of Labour and Contractor’s Equipment
Materials Plant and Workmanship 36.1 Quality of Materials, Plant and Workmanship
36.2 Cost of Samples
36.3 Cost of Tests
Annexure VIII-b 95
36.4 Cost of Tests not Provided for
36.5 Engineer’s Determination where Tests not Provided for
37.1 Inspection of Operations
37.2 Inspection and Testing
37.3 Dates for Inspection and Testing
37.4 Rejection
37.5 Independent Inspection
38.1 Examination of Work before Covering up
38.2 Uncovering and Making Openings
39.1 Removal of Improper Works, Materials or Plant
39.2 Default of Contractor in Compliance
Suspension 40.1 Suspension of Work
40.2 Engineer’s Determination following Suspension
40.3 Suspension lasting more than 84 Days
Commencement and Delays 41.1 Commencement of Works
42.1 Possession of Site and Access Thereto
42.2 Failure to Give Possession
42.3 Rights of Way and Facilities
43.1 Time for Completion
44.1 Extension of Time for Completion
44.2 Contractor to Provide Notification and Detailed Particulars
44.3 Interim Determination of Extension
45.1 Restriction on Working Hours
46.1 Rate of Progress
47.1 Liquidated Damages for Delay
47.2 Reduction of Liquidated Damages
48.1 Taking-Over Certificate
48.2 Taking-Over of Sections or Parts
48.3 Substantial Completion of Parts
48.4 Surfaces Requiring Reinstatement
Defects Liability 49.1 Defects Liability Period
49.2 Completion of Outstanding Work and Remedying Defects
49.3 Cost of Remedying Defects
49.4 Contractor’s Failure to Carry Out Instructions
50.1 Contractor to Search
Alterations, Additions and Omissions 51.1 Variations
51.2 Instructions for Variations
52.1 Valuation of Variations
52.2 Power of Engineer to Fix Rates
52.3 Variations Exceeding 15 percent
52.4 Daywork
Annexure VIII-b 96
Procedure for Claims 53.1 Notice of Claims
53.2 Contemporary Records
53.3 Substation of Claims
53.4 Failure to Comply
53.5 Payment of Claims
Contractor’s Equipment, Temporary Works and Materials 54.1 Contractor’s Equipment, Temporary Works and Materials; Exclusive Use for the
Works
54.2 Employer not Liable for Damage
54.3 Customs Clearance
54.4 Re-export of Contractor’s Equipment
54.5 Conditions of Hire Contractor’s Equipment
54.6 Costs for the Purpose of Clause 63
54.7 Incorporation of Clause in Subcontractors
54.8 Approval of Materials not Implied
Measurement 55.1 Quantities
56.1 Works to be Measured
57.1 Method of Measurement
57.2 Breakdown of Lump Sum Items
Provisional Sums 58.1 Definition of “Provisional Sum”
58.2 Use of Provisional Sums
58.3 Production of Vouchers
Nominated Subcontractors 59.1 Definition of “Nominated Subcontractors”
59.2 Nominated Subcontractors; Objection to Nomination
59.3 Design Requirement to be Expressly Stated
59.4 Payments to Nominated Subcontractors
59.5 Certification of Payments to Nominated Subcontractors
Certificates and Payment 60.1 Monthly Statements
60.2 Monthly Payments
60.3 Payment of Retention Money
60.4 Correction of Certificates
60.5 Statement at Completion
60.6 Final Statement
60.7 Discharge
60.8 Final Payment Certificate
60.9 Cessation of Employer’s Liability
60.10 Time for Payment
61.1 Approval only by Defects Liability Certificate
62.1 Defects Liability Certificate
62.2 Unfulfilled Obligations
Annexure VIII-b 97
Remedies 63.1 Default of Contractor
63.2 Valuation at Date of Termination
63.3 Payment after Termination
63.4 Assignment of Benefit of Agreement
64.1 Urgent Remedial Work
Special Risks 65.1 No Liability for Special Risks
65.2 Special Risks
65.3 Damage to Works by Special Risks
65.4 Projectile, Missile
65.5 Increased Costs arising from special Risks
65.6 Outbreak of War
65.7 Removal of Contractor’s Equipment on Termination
65.8 Payment if Contract Terminated
Release from Performance 66.1 Payment in Event of Release from Performance
Settlement of Disputes 67.1 Engineer’s Decision
67.2 Amicable Settlement
67.3 Arbitration
67.4 Failure to Comply with Engineer’s Decision
Notices 68.1 Notice to Contractor
68.2 Notice to Employer and Engineer
68.3 Change of Address
Default of Employer 69.1 Default of Employer 69.2 Removal of Contractor’s Equipment
69.3 Payment on Termination
69.4 Contractor’s Entitlement to Suspend Work
69.5 Resumption of Work
Change in Cost and Legislation 70.1 Increase or Decrease of Cost
70.2 Subsequent Legislation
Currency and Rates of Exchange
71.1 Currency Restrictions
72.1 Rates of Exchange
72.2 Currency Proportions
72.3 Currencies of Payment for Provisional Sums
Annexure VIII-b 98
REFERENCE TO PART II
INDEX
TENDER
AGREEMENT
EDITORIAL AMENDMENTS IN 1988
FURTHER AMENDMENTS IN 1992
PART I – GENERAL CONDITIONS
Definitions and Interpretation
Definitions 1.1 In the Contract (as hereinafter defined) the following words and
expressions shall have the meanings hereby assigned to them,
except where the context otherwise requires:
(a) (i) “Employer” means the person named as such in Part
II of these Conditions and the legal successors in title to
such person, but not (except with the consent of the
Contractor) any assignee of such person.
(b) (ii) “Contractor” means the person whose tender has been
accepted by the Employer and the legal successors in title to
such person, but not (except with the consent of Employer)
any assignee of such person.
(iii) “Subcontractor” means any person named in the Contract as a Subcontractor for a part of the Works or any person to whom a part of the Works has been subcontracted with the consent of the Engineer and the legal successors in title to such person, but not any assignee of any such person. (iv) “Engineer” means the person appointed by the
Employer to act as Engineer for the purposes of the Contract
and named as such in Part II of these Conditions.
Annexure VIII-b 99
(v) “Engineer’s Representative” means a person appointed
from time to time by the Engineer under Sub-Clause 2.2.
(b) (i) “Contract” means these Conditions (Parts I and II), the
Specification, the Drawings, the Bill of Quantities, the Tender, the Letter of Acceptance, the Contract Agreement (if completed) and such further documents as may be expressly incorporated in the Letter of Acceptance or Contract Agreement (if completed).
(ii) "Specification" means the specification of the Works
included in the Contract and any modification thereof or
addition thereto made under Clause 51 or submitted by the
Contractor and approved by the Engineer.
(iii) "Drawings" means all drawings, calculations and
technical information of a like nature provided by the
Engineer to the Contractor under the Contract and all
drawings, calculations, samples, patterns, models, operation
and maintenance manuals and other technical information of
a like nature submitted by the Contractor and approved by
the Engineer.
(iv) "Bill of Quantities" means the priced and completed bill
of quantities forming part of the Tender.
(v) "Tender" means the Contractor's priced offer to the
Employer for the execution and completion of the Works
and the remedying of any defects therein in accordance with
the provisions of the Contract, as accepted by the Letter of
Acceptance.
(vi) "Letter of Acceptance" means the formal acceptance by
the Employer of the Tender.
(vii) "Contract Agreement" means the contract agreement (if
any) referred to in Sub-Clause 9. 1. (viii) "Appendix to Tender" means the appendix comprised in the form of Tender annexed to these Conditions.
(c) (i) "Commencement Date" means the date upon which the
Contractor receives the notice to commence issued by the
Engineer pursuant to Clause 41. (ii) "Time for Completion" means the time for completing the execution of and passing the Tests on Completion of the Works or any Section or part thereof as stated in the Contract (or as extended under Clause 44) calculated from the Commencement Date.
(d) (i) "Tests on Completion" means the tests specified in the
Contract or otherwise agreed by the Engineer and the
Annexure VIII-b 100
Contractor which are to be made by the Contractor before
the Works or any Section or part thereof are taken over by
the Employer.
(ii) "Taking-Over Certificate" means a certificate issued
pursuant to Clause 48.
(e) (i) "Contract Price" means the sum stated in the Letter of
Acceptance as payable to the Contractor for the execution
and completion of the Works and the remedying of any
defects therein in accordance with the provisions of the
Contract.
(ii) "Retention Money" means the aggregate of all monies
retained by the Employer pursuant to Sub-Clause 60.2(a).
(iii) "Interim Payment Certificate" means any certificate of
payment issued by the Engineer other than the Final
Payment Certificate.
(iv) "Final Payment Certificate" means the certificate of
payment issued by the Engineer pursuant to Sub-Clause
60.8.
(f) (i) "Works" means the Permanent Works and the Temporary
Works or either of them as appropriate.
(ii) "Permanent Works" means the permanent works to be
executed (including Plant) in accordance with the Contract.
(iii) "Temporary Works" means all temporary works of
every kind (other than Contractor's Equipment) required in
or about the execution and completion of the Works and the
remedying of any defects therein.
(iv) "Plant" means machinery, apparatus and the like
intended to form or forming part of the Permanent Works.
(v) "Contractor's Equipment" means all appliances and
things of whatsoever nature (other than Temporary Works)
required for the execution and completion of the Works and
the remedying of any defects therein, but does not include
Plant, materials or other things intended to form or forming
part of the Permanent Works.
(vi) "Section" means a part of the Works specifically
identified in the Contract as a Section.
(vii) "Site" means the places provided by the Employer
where the Works are to be executed and any other places as
Annexure VIII-b 101
may be specifically designated in the Contract as forming
part of the Site. (g) (i) "cost" means all expenditure properly incurred or to be
incurred, whether on or off the Site, including overhead and other charges properly allocable thereto but does not include any allowance for profit.
(ii) "day" means calendar day.
(iii) "foreign currency" means a currency of a country other
than that in which the Works are to be located.
(iv) "writing" means any hand-written, type-written, or
printed communication including telex, cable and facsimile
transmission.
Headings and Marginal Notes
1.2 The headings and marginal notes in these Conditions shall not be
deemed part thereof or be taken into consideration in the
interpretation or construction thereof or of the Contract.
Interpretation 1.3 Words importing persons or parties shall include firms and
corporations and any organization having legal capacity.
Singular and Plural
1.4 Words importing the singular only also include the plural and
vice versa where the context requires.
Notices, Consents, Approvals, Certificates and Determinations
1.5 Wherever in the Contract provision is made for the giving or
issue of any notice, consent, approval, certificate or
determination by any person, unless otherwise specified such
notice, consent, approval, certificate or determination shall be in
writing and the words “notify”, “certify” or “determine” shall be
construed accordingly. Any such consent, approval, certificate or
determination shall not unreasonably be withheld or delayed.
Engineer and Engineer’s Representative
Engineer's Duties and Authority
2.1 (a) The Engineer shall carry out the duties specified in the
Contract.
(b) The Engineer may exercise the authority specified in or
necessarily to be implied from the Contract, provided, however,
that if the Engineer is required, under the terms of his
appointment by the Employer, to obtain the specific approval of
the Employer before exercising any such authority, particulars of
such requirements shall be set out in Part II of these Conditions.
Provided further that any requisite approval shall be deemed to
have been given by the Employer for any such authority
exercised by the Engineer.
(c) Except as expressly stated in the Contract, the Engineer shall
Annexure VIII-b 102
have no authority to relieve the Contractor of any of his
obligations under the Contract.
Engineer's Representative
2.2 The Engineer's Representative shall be appointed by and be
responsible to the Engineer and shall carry out such duties and
exercise such authority as may he delegated to him by the
Engineer under Sub-Clause 2.3.
Engineer's Authority to Delegate
2.3 The Engineer may from time to time delegate to the Engineer's
Representative any of the duties and authorities vested in the
Engineer and he may at any time revoke such delegation. Any
such delegation or revocation shall be in writing and shall not
take effect until a copy thereof has been delivered to the
Employer and the Contractor.
Any communication given by the Engineer's Representative to
the Contractor in accordance with such delegation shall have the
same effect as though it had been given by the Engineer.
Provided that:
(a) any failure of the Engineer's Representative to disapprove
any work, materials or Plant shall not prejudice the authority of
the Engineer to disapprove such work, materials or Plant and to
give instructions for the rectification thereof; and
(b) if the Contractor questions any communication of the
Engineer's Representative he may refer the matter to the
Engineer who shall confirm, reverse or vary the contents of such
communication.
Appointment of Assistants
2.4
The Engineer or the Engineer's Representative may appoint any
number of persons to assist the Engineer's Representative in the
carrying out of his duties under Sub-Clause 2.2. He shall notify
to the Contractor the names, duties and scope of authority of
such persons. Such assistants shall have no authority to issue any
instructions to the Contractor save in so far as such instructions
may be necessary to enable them to carry out their duties and to
secure their acceptance of materials, Plant or workmanship as
being in accordance with the Contract, and any instructions
given by any of them for those purposes shall be deemed to have
been given by the Engineer's Representative.
Instructions in Writing
2.5
Instructions given by the Engineer shall be in writing, provided
that if for any reason the Engineer considers it necessary to give
any such instruction orally, the Contractor shall comply with
such instruction. Confirmation in writing of such oral instruction
given by the Engineer, whether before or after the carrying out
of the instruction, shall be deemed to be an instruction within the
meaning of this Sub-Clause. Provided further that if the
Contractor, within 7 days, confirms in writing to the Engineer
any oral instruction of the Engineer and such confirmation is not
Annexure VIII-b 103
contradicted in writing within 7 days by the Engineer, it shall be
deemed to be an instruction of the Engineer.
The provisions of this Sub-Clause shall equally apply to
instructions given by the Engineer's Representative and any
assistants of the Engineer or the Engineer's Representative
appointed pursuant to Sub-Clause 2.4.
Engineer to Act Impartially
2.6
Wherever, under the Contract, the Engineer is required to
exercise his discretion by:
(a) giving his decision, opinion or consent,
(b) expressing his satisfaction or approval,
(c) determining value, or
(d) otherwise taking action which may affect the rights and
obligations of the Employer or the Contractor he shall exercise
such discretion impartially within the terms of the Contract and
having regard to all the circumstances. Any such decision,
opinion, consent, expression of satisfaction, or approval,
determination of value or action may be opened up, reviewed or
revised as provided in Clause 67.
Assignment and Subcontracting
Assignment of Contract
3.1
The Contractor shall not, without the prior consent of the
Employer (which consent, notwithstanding the provisions of
Sub-Clause 1.5, shall be at the sole discretion of the Employer),
assign the Contract or any part thereof, or any benefit or interest
therein or there under, otherwise than by:
(a) a charge in favour of the Contractor's bankers of any monies
due or to become due under the Contract, or
(b) assignment to the Contractor's insurers (in cases where the
insurers have discharged the Contractor's loss or liability) of the
Contractor's right to obtain relief against any other party liable.
Subcontracting 4.1
The Contractor shall not subcontract the whole of the Works.
Except where otherwise provided by the Contract, the Contractor
shall not subcontract any part of the Works without the prior
consent of the Engineer. Any such consent shall not relieve the
Contractor from any liability or obligation under the Contract
and he shall be responsible for the acts, defaults and neglects of
any Subcontractor, his agents, servants or workmen as fully as if
they were the acts, defaults or neglects of the Contractor, his
agents, servants or workmen.
Provided that the Contractor shall not be required to obtain such
Annexure VIII-b 104
consent for:
(a) the provision of labour,
(b) the purchase of materials which are in accordance with the
standards specified in the Contract, or
(c) the subcontracting of any part of the Works for which the
Subcontractor is named in the Contract.
Assignment of Subcontractors’ Obligations
4.2
In the event of a Subcontractor having undertaken towards the
Contractor in respect of the work executed, or the goods,
materials, Plant or services supplied by such Subcontractor, any
continuing obligation extending for a period exceeding that of
the Defects Liability Period under the Contract, the Contractor
shall at any time, after the expiration of such Period, assign to
the Employer, at the Employer's request and cost, the benefit of
such obligation for the unexpired duration thereof.
Contract Documents
Language/s and Law
5.1 There is stated in Part II of these Conditions:
(a) the language or languages in which the Contract documents
shall be drawn up, and
(b) the country or state the law of which shall apply to the
Contract and according to which the Contract shall be construed.
If the said documents are written in more than one language, the
language according to which the Contract shall be construed and
interpreted is also stated in Part II of these Conditions, being
therein designated the "Ruling Language".
Priority of Contract Documents
5.2 The several documents forming the Contract are to be taken as
mutually, explanatory of one another, but in case of ambiguities
or discrepancies the same shall be explained and adjusted by the
Engineer who shall thereupon issue to the Contractor
instructions thereon and in such event, unless otherwise provided
in the Contract, the priority of the documents forming the
Contract shall be as follows:
(1) The Contract Agreement (if completed);
(2) The Letter of Acceptance.
(3) The Tender,
(4) Part II of these Conditions;
(5) Part I of these Conditions; and
Annexure VIII-b 105
(6) Any other document forming part of the Contract.
Custody and Supply of Drawings and Documents
6.1 The Drawings shall remain in the sole custody of the Engineer,
but two copies thereof shall be provided to the Contractor free of
charge. The Contractor shall make at his own cost any further
copies required by him. Unless it is strictly necessary for the
purposes of the Contract, the Drawings, Specification and other
documents provided by the Employer or the Engineer shall not,
without the consent of the Engineer, be used or communicated to
a third party by the Contractor. Upon issue of the Defects
Liability Certificate, the Contractor shall return to the Engineer
all Drawings, Specification and other documents provided under
the Contract.
The Contractor shall supply to the Engineer four copies of all
Drawings, Specification and other documents submitted by the
Contractor and approved by the Engineer in accordance with
Clause 7, together with a reproducible copy of any material
which cannot he reproduced to an equal standard by
photocopying. In addition the Contractor shall supply such
further copies of such Drawings, Specification and other
documents as the Engineer may request in writing for the use of
the Employer, who shall pay the cost thereof.
One Copy of Drawings to be Kept on site
6.2 One copy of the Drawings, provided to or supplied by the
Contractor as aforesaid, shall be kept by the Contractor on the
Site and the same shall at all reasonable times be available for
inspection and use by the Engineer and by any other person
authorised by the Engineer in writing.
Disruption of Progress
6.3 The Contractor shall give notice to the Engineer, with a copy to
the Employer, whenever planning or execution of the Works is
likely to be delayed or disrupted unless any further drawing or
instruction is issued by the Engineer within a reasonable time.
The notice shall include details of the drawing or instruction
required and of why and by when it is required and of any delay
or disruption likely to be suffered if it is late.
Delays and Cost of delay of Drawings
6.4 If, by reason of any failure or inability of the Engineer to issue,
within a time reasonable [ maximum 7 days] in all the
circumstances, any drawing or instruction for which notice has
been given by the Contractor in accordance with Sub-Clause 6.3,
the Contractor suffers delay and/or incurs costs then the
Engineer shall, after due consultation with the Employer and the
Contractor, determine:
(a) any extension of time to which the Contractor is entitled
under Clause 44, and
(b) the amount of such costs, which shall be added to the
Contract Price and shall notify the Contractor accordingly, with
Annexure VIII-b 106
a copy to the Employer.
Failure by Contractor to submit Drawings
6.5 If the failure or inability of the Engineer to issue any drawings or
instructions is caused in whole or in Part by the failure of the
Contractor to submit Drawings, Specification or other
documents which he is required to submit under the Contract,
the Engineer shall take such failure by the Contractor into
account when making his determination pursuant to Sub-Clause
6.4.
Supplementary Drawings and Instructions
7.1 The Engineer shall have authority to issue to the Contractor,
from time to time, such supplementary Drawings and
instructions as shall be necessary for the purpose of the proper
and adequate execution and completion of the Works and the
remedying of any defects therein. The Contractor shall carry out
and be bound by the same.
Permanent Works Designed by Contractor
7.2 Where the Contract expressly provides that part of the
Permanent Works shall be designed by the Contractor, he shall
submit to the Engineer, for approval:
(a) such drawings, specifications, calculations and other
information as shall he necessary to satisfy the Engineer as to the
suitability and adequacy of that design, and
(b) operation and maintenance manuals together with drawings
of the Permanent Works as completed, in sufficient detail to
enable the Employer to operate, maintain, dismantle, reassemble
and adjust the Permanent Works incorporating that design. The
Works shall not be considered to be completed for the purposes
of taking over in accordance with Clause 48 until such operation
and maintenance manuals, together with drawing on completion,
have been submitted to and approved by the Engineer.
Responsibility Unaffected by Approval
7.3 Approval by the Engineer, in accordance with Sub-Clause 7.2,
shall not relieve the Contractor of any of his responsibilities
under the Contract.
General Obligations
Contractor’s General Responsibilities
8.1 The Contractor shall, with due care and diligence, design (to the
extent provided for by the Contract), execute and complete the
Works and remedy any defects therein in accordance with the
provisions of the Contract. The Contractor shall provide all
superintendence, labour, materials, Plant, Contractor's
Equipment and all other things, whether of a temporary or
permanent nature, required in and for such design, execution,
completion and remedying of any defects, so far as the necessity
for providing the same is specified in or is reasonably to be
inferred from the Contract.
Annexure VIII-b 107
The Contractor shall give prompt notice to the Engineer, with a
copy to the Employer, of any error, omission, fault or other
defect in the design of or Specification for the Works which he
discovers when reviewing the Contract or executing the Works.
Site Operations and Method of Construction
8.2 The Contractor shall take full responsibility for the adequacy,
stability and safety of all Site operations and methods of
construction. Provided that the Contractor shall not be
responsible (except as stated hereunder or as may be otherwise
agreed) for the design or specification of Permanent Works, or
for the design or specification of any Temporary Works not
prepared by the Contractor. Where the Contract expressly
provides that part of the Permanent Works shall be designed by
the Contractor, he shall be fully responsible for that part of such
Works, notwithstanding any approval by the Engineer.
Contract Agreement
9.1 The Contractor shall, if called upon so to do, enter into and
execute the Contract Agreement, to be prepared and completed
at the cost of' the Employer, in the form annexed to these
Conditions with such modification, as may be necessary.
Performance Security
10.1 If the Contract requires the Contractor to obtain security for his
proper performance of the Contract, he shall obtain and provide
to the Employer such security within 15 days after the receipt of
the Letter of Acceptance, in the sum stated in the Appendix to
Tender. When providing such security to the Employer, the
Contractor shall notify the Engineer of so doing. Such security
shall be in the form annexed to these Conditions or in such other
form as may be agreed between the Employer and the
Contractor. The institution providing such security shall be
subject to the approval of the Employer. The cost of complying
with the requirements of this Clause shall be borne by the
Contractor, unless the Contract otherwise provides.
Period of Validity of Performance Security
10.2 The performance security shall be valid until the Contractor has
executed and completed the Works and remedied any defects
therein in accordance with the Contract. No claim shall be made
against such security after the issue of the Defects Liability
Certificate in accordance with Sub-Clause 62.1 and such security
shall be returned to the Contractor within 14 days of the issue of
the said Defects Liability Certificate.
Claims Under Performance Security
10.3 Prior to making a claim under the performance security the
Employer shall, in every case, notify the Contractor stating the
nature of the default in respect of which the claim is to be made.
Inspection of Site
11.1 The Employer shall have made available to the Contractor,
before the submission by the Contractor of the Tender, such data
on hydrological and sub-surface conditions as have been
Annexure VIII-b 108
obtained by or on behalf of the Employer from investigations
undertaken relevant to the Works but the Contractor shall be
responsible for his own interpretation thereof.
The Contractor shall be deemed to have inspected and examined
the Site and its surroundings and information available in
connection therewith and to have satisfied himself (so far as is
practicable, having regard to considerations of cost and time)
before submitting his Tender, as to:
(a) the form and nature thereof, including the sub-surface
conditions,
(b) the hydrological and climatic conditions,
(c) the extent and nature of work and materials necessary for the
execution and completion of the Works and the remedying of
any defects therein, and
(d) the means of access to the Site and the accommodation he
may require, and, in general, shall be deemed to have obtained
all necessary information, subject as above mentioned, as to
risks, contingencies and all other circumstances which may
influence or affect his Tender.
The Contractor shall be deemed to have based his Tender on the
data made available by the Employer and on his own inspection
and examination, all as aforementioned.
Sufficiency of Tender
12.1 The Contractor shall be deemed to have satisfied himself as to
the correctness and sufficiency of the Tender and of the rates and
prices stated in the Bill of Quantities, all of which shall, except
insofar as it is otherwise provided in the Contract, cover all his
obligations under the Contract (including those in respect of the
supply of goods, materials, Plant or services or of contingencies
for which there is a Provisional Sum) and all matters and things
necessary for the proper execution and completion of the Works
and the remedying of any defects therein.
Not Foreseeable Physical Obstructions or Conditions
12.2 If, however, during the execution of the Works the Contractor
encounters physical obstructions or physical conditions, other
than climatic conditions on the Site, which obstructions or
conditions were, in his opinion, not foreseeable by an
experienced contractor, the Contractor shall forthwith give
notice thereof to the Engineer, with a copy to the Employer. On
receipt of such notice, the Engineer shall, if in his opinion such
obstructions or conditions could not have been reasonably
foreseen by an experienced contractor, after due consultation
with the Employer and the Contractor, determine:
(a) any extension of time to which the Contractor is entitled
Annexure VIII-b 109
under Clause 44, and (b) the amount of any costs which may
have been incurred by the Contractor by reason of such
obstructions or conditions having been encountered, which shall
be added to the Contract Price, and shall notify the Contractor
accordingly, with a copy to the Employer. Such determination
shall take account of any instruction, which the Engineer may
issue to the Contractor in connection therewith, and any proper
and reasonable measures acceptable to the Engineer, which the
Contractor may take in the absence of specific instructions from
the Engineer.
Work to be in Accordance with Contract
13.1 Unless it is legally or physically impossible, the Contractor shall
execute and complete the Works and remedy any defects therein
in strict accordance with the Contract to the satisfaction of the
Engineer. The Contractor shall comply with and adhere strictly
to the Engineer’s instructions on any matter, whether mentioned
in the Contract or not, touching or concerning the Works. The
Contractor shall take instructions only from the Engineer (or his
delegate).
Programme to be Submitted
14.1 The Contractor shall, within the time stated in Part II of these
Conditions after the date of the Letter of Acceptance, submit to
the Engineer for his consent a programme, in such form and
detail as the Engineer shall reasonably prescribe, for the
execution of the Works. The Contractor shall, whenever required
by the Engineer, also provide in writing for his information a
general description of the arrangements and methods which the
Contractor proposes to adopt for the execution of the Works.
Revised Programme
14.2 If at any time it should appear to the Engineer that the actual
progress of the Works does not conform to the programme to
which consent has been given under Sub-Clause 14.1, the
Contractor shall produce, at the request of the Engineer, a
revised programme showing the modifications to such
programme necessary to ensure completion of the Works within
the Time for Completion.
Cash Flow Estimate to be Submitted
14.3 The Contractor shall, within the time stated in Part II of these
Conditions after the date of the Letter of Acceptance, provide to
the Engineer for his information a detailed cash flow estimate, in
quarterly periods, of all payments to which the Contractor will
be entitled under the Contract and the Contractor shall
subsequently supply revised cash flow estimates at quarterly
intervals, if required to do so by the Engineer.
Contractor not Relieved of Duties or Responsibilities
14.4 The submission to and consent by the Engineer of such
programmes or the provision of such general descriptions or
cash flow estimates shall not relieve the Contractor of any of his
duties or responsibilities under the Contract.
Annexure VIII-b 110
Contractor’s Superintendence
15.1 The Contractor shall provide all necessary superintendence
during the execution of the Works and as long thereafter as the
Engineer may consider necessary for the proper fulfilling of the
Contractor's obligations under the Contract. The Contractor, or a
competent and authorised representative approved of by the
Engineer, which approval may at any time be withdrawn, shall
give his whole time to the superintendence of the Works. Such
authorised representative shall receive, on behalf of the
Contractor, instructions from the Engineer.
If approval of the representative is withdrawn by the Engineer,
the Contractor shall, as soon as is practicable, having regard to
the requirement of replacing him as hereinafter mentioned, after
receiving notice of such withdrawal, remove the representative
from the Works and shall not thereafter employ him again on the
Works in any capacity and shall replace him by another
representative approved by the Engineer.
Contractor’s Employees
16.1 The Contractor shall provide on the Site in connection with the
execution and completion of the Works and the remedying of
any defects therein:
(a) only such technical assistants as are skilled and experienced
in their respective calling and such foremen and leading hands as
are competent to give proper superintendence of the Works, and
(b) such skilled, semiskilled and unskilled labour as is necessary
for the proper and timely fulfilling of the Contractor's
obligations under the Contract.
Engineer at Liberty to Object
16.2 The Engineer shall be at liberty to object to and require the
Contractor to remove forthwith from the Works any person
provided by the Contractor who, in the opinion of the Engineer,
misconducts himself, or is incompetent or negligent in the
proper performance of his duties, or whose presence on Site is
otherwise considered by the Engineer to be undesirable, and
such person shall not be again allowed upon the Works without
the consent of the Engineer. Any person so removed from the
Works shall be replaced as soon as possible.
Setting-out 17.1 The Contractor shall be responsible for:
(a) the accurate setting-out of the Works in relation to original
points, lines and levels of reference given by the Engineer in
writing,
(b) the correctness, subject as above mentioned, of the position,
levels, dimensions and alignment of all parts of the Works, and
(c) the provision of all necessary instruments, appliances and
labour in connection with the foregoing responsibilities.
Annexure VIII-b 111
If, at any time during the execution of the Works, any error
appears in the position, levels, dimensions or alignment of any
part of the Works, the Contractor, on being required so to do by
the Engineer, shall, at his own cost, rectify such error to the
satisfaction of the Engineer, unless such error is based on
incorrect data supplied in writing by the Engineer, in which case
the Engineer shall determine an addition to the Contract Price in
accordance with Clause 52 and shall notify the Contractor
accordingly, with a copy to the Employer.
The checking of any setting-out or of any line or level by the
Engineer shall not in any way relieve the Contractor of his
responsibility for the accuracy thereof and the Contractor shall
carefully protect and preserve all benchmarks, sight-rails, pegs
and other things used in setting-out the Works.
Boreholes and Exploratory Excavation
18.1 If, at any time during the execution of the Works, the Engineer
requires the Contractor to make boreholes or to carry out
exploratory excavation, such requirement shall be the subject of
an instruction in accordance with Clause 51, unless an item or a
Provisional Sum in respect of such work is included in the Bill
of Quantities.
Safety, Security and Protection of the Environment
19.1 The Contractor shall, throughout the execution and completion
of the Works and the remedying of any defects therein:
(a) have full regard for the safety of all persons entitled to be
upon the Site and keep the Site (so far as the same is under his
control) and the Works (so far as the same are not completed or
occupied by the Employer) in an orderly state appropriate to the
avoidance of danger to such persons.
(b) provide and maintain at his own cost all lights, guards,
fencing, warning signs and watching, when and where necessary
or required by the Engineer or by any duly constituted authority,
for the protection of the Works or for the safety and convenience
of the public or others, and
(c) take all reasonable steps to protect the environment on and
off the Site and to avoid damage or nuisance to persons or to
property of the public or others resulting from pollution, noise or
other causes arising as a consequence of his methods of
operation.
Employer’s Responsibilities
19.2 If under Clause 31 the Employer shall carry out work on the Site
with his own workmen he shall, in respect of such work:
(a) have full regard to the safety of all persons entitled to be
upon the Site, and
Annexure VIII-b 112
(b) keep the Site in an orderly state appropriate to the avoidance
of danger to such persons.
If under Clause 31 the Employer shall employ other contractors
on the Site he shall require them to have the same regard for
safety and avoidance of danger.
Care of Works 20.1 The Contractor shall take full responsibility for the care of the
Works and materials and Plant for incorporation therein from the
Commencement Date until the date of issue of the Taking-Over
Certificate for the whole of the Works, when the responsibility
for the said care shall pass to the Employer. Provided that:
(a) if the Engineer issues a Taking-Over Certificate for any
Section or part of the Permanent Works the Contractor shall
cease to be liable for the care of that Section or part from the
date of issue of the Taking-Over Certificate. When the
responsibility for the care of that section or part shall pass to the
Employer. and
(b) the Contractor shall take full responsibility for the care of
any outstanding Works and materials and Plant for incorporation
therein which he undertakes to finish during the Defects
Liability Period until such outstanding Works have been
completed pursuant to Clause 49.
Responsibility to Rectify Loss or Damage
20.2 If any loss or damage happens to the Works, or any part thereof,
or materials or Plant for incorporation therein, during the period
for which the Contractor is responsible for the care thereof, from
any cause whatsoever, other than the risks defined in Sub-Clause
20.4, the Contractor shall, at his own cost, rectify such loss or
damage so that the Permanent Works conform in every respect
with the provisions of the Contract to the satisfaction of the
Engineer. The Contractor shall also be liable for any loss or
damage to the Works occasioned by him in the course of any
operations carried out by him for the purpose of complying with
his obligations under Clauses 49 and 50.
Loss or Damage due to Employer’s Risks
20.3 In the event of any such loss or damage happening from any of
the risks defined in Sub-Clause 20.4, or in combination with
other risks, the Contractor shall, if' and to the extent required by
the Engineer, rectify the loss or damage and the Engineer shall
determine an addition to the Contract Price in accordance with
Clause 52 and shall notify the Contractor accordingly, with a
copy to the Employer. In the case of a combination of risks
causing loss or damage any such determination shall take into
account the proportional responsibility of the Contractor and the
Employer.
Annexure VIII-b 113
Employer’s Risks
20.4 The Employer's risks are:
(a) war, hostilities (whether war be declared or not), invasion,
act of foreign enemies,
(b) rebellion, revolution, insurrection, or military or usurped
power, or civil war,
(c) ionizing radiations, or contamination by radio-activity from
any nuclear fuel, or from any nuclear waste from the combustion
of nuclear fuel, radio-active toxic explosive or other hazardous
properties of any explosive nuclear assembly or nuclear
component thereof.
(d) pressure waves caused by aircraft or other aerial devices
travelling at sonic or supersonic speeds,
(c) riot commotion or disorder, unless solely restricted to
employees of the Contractor or of his Subcontractors and arising
from the conduct of the Works,
(f) loss or damage due to the use or occupation by the Employer
of any Section or part of the Permanent Works, except as may be
provided for in the Contract,
(g) loss or damage to the extent that it is due to the design of the
Works, other than any part of the design provided by the
Contractor or for which the Contractor is responsible, and
(h) any operation of the forces of nature against which an
experienced contractor could not reasonably have been expected
to take precautions.
Insurance of Works and Contractor’s Equipment
21.1 The Contractor shall, without limiting his or the Employer's
obligations and responsibilities under Clause 20, insure:
(a) the Works, together with materials and Plant for
incorporation therein, to the full replacement cost (the term
"cost" in this context shall include profit).
(b) an additional sum of 15 per cent of such replacement cost, or
as may be specified in Part II of these Conditions, to cover any
additional costs of and incidental to the rectification of loss or
damage including professional fees and the cost of demolishing
and removing any part of the Works and of removing debris of
whatsoever nature, and
(c) the Contractor's Equipment and other things brought onto the
Annexure VIII-b 114
Site by the Contractor, for a sum sufficient to provide for their
replacement at the Site.
Scope of Cover 21.2 The insurance in paragraphs (a) and (b) of Sub-Clause 21.1 shall
be in the joint names of the Contractor and the Employer and
shall cover:
(a) the Employer and the Contractor against all loss or damage
from whatsoever cause arising, other than as provided in Sub-
Clause 21.4, from the start of Work at the Site until the date of
issue of the relevant Taking-Over Certificate in respect of the
Works or any Section or part thereof as the case may be, and
(b) the Contractor for his liability:
(i) during the Defects Liability Period for loss or damage, arising
from a cause occurring prior to the commencement of the
Defects Liability Period, and
(ii) for loss or damage occasioned by the Contractor in the
course of any operations carried out by him for the purpose of
complying with his obligations under Clauses 49 and 50.
Responsibility for amounts not Recovered
21.3 Any amounts not insured or not recovered from the insurers
shall be borne by the Employer or the Contractor in accordance
with their responsibilities under Clause 20.
Exclusions 21.4 There shall be no obligation for the insurances in Sub-Clause
21.1 to include loss or damage caused by:
(a) war, hostilities (whether war be declared or not), invasion act
of foreign enemies,
(b) rebellion, revolution, insurrection, or military or usurped
power, or civil war,
(c) ionizing radiations, or contamination by radio-activity from
any nuclear fuel, or from any nuclear waste from the combustion
of nuclear fuel, radio-active toxic explosive or other hazardous
properties of any explosive nuclear assembly or nuclear
component thereof, or
(d) pressure waves caused by aircraft or other aerial devices
travelling at sonic or supersonic speeds.
Damages to Persons and Property
22.1 The Contractor shall, except if and so far as the Contract
provides otherwise, indemnify the Employer against all losses
and claims in respect of:
(a) death of or injury to any person, or
Annexure VIII-b 115
(b) loss of or damage to any property (other than the Works),
which may arise out of or in consequence of the execution and
completion of the Works and the remedying of any defects
therein, and against all claims, proceedings, damages, costs,
charges and expenses whatsoever in respect thereof or in relation
thereto, subject to the exceptions defined in Sub-Clause 22.2.
Exceptions 22.2 The "exceptions" referred to in Sub-Clause 22.1 are:
(a) the permanent use or occupation of land by the Works, or any
part thereof.
(b) the right of the Employer to execute the Works, or any part
thereof, on, over,
under, in or through any land,
(c) damage to property which is the unavoidable result of the
execution and completion of the Works, or the remedying of any
defects therein, in accordance with the Contract, and
(d) death of or injury to persons or loss of or damage to property
resulting from any act or neglect of the Employer, his agents,
servants or other contractors, not being employed by the
Contractor, or in respect of any claims, proceedings, damages,
costs, charges and expenses in respect thereof or in relation
thereto or, where the injury or damage was contributed to by the
Contractor, his servants or agents, such part of the said injury or
damage as may be just and equitable having regard to the extent
of the responsibility of the Employer, his servants or agents or
other contractors for the injury or damage.
Indemnity by Employer
22.3 The Employer shall indemnify the Contractor against all claims,
proceedings, damages, costs, charges and expenses in respect of
the matters referred to in the exceptions defined in Sub-Clause
22.2.
Third Party Insurance (including Employer's Property)
23.1 The Contractor shall, without limiting his or the Employer's
obligations and responsibilities under Clause 22, insure, in the
joint names of the Contractor and the Employer, against
liabilities for death of or injury to any person (other than as
provided in Clause 24) or loss of or damage to any property
(other than the Works) arising out of the performance of the
Contract, other than the exceptions defined in paragraphs (a), (b)
and (c) of Sub-Clause 22.2.
Minimum amount of Insurance
23.2 Such insurance shall be for at least the amount stated in the
Appendix to Tender.
Cross Liabilities
23.3
The insurance policy shall include a cross liability clause such
Annexure VIII-b 116
that the insurance shall apply to the Contractor and to the
Employer as separate insured.
Accident or Injury to Workmen
24.1 The Employer shall not be liable for or in respect of any
damages or compensation payable to any workman or other
person in the employment of the Contractor or any
Subcontractor, other than death or injury resulting from any act
or default of the Employer, his agents or servants. The
Contractor shall indemnify and keep indemnified the Employer
against all such damages and compensation, other than those for
which the Employer is liable as aforesaid, and against all claims,
proceedings, damages, costs, charges, and expenses whatsoever
in respect thereof or in relation thereto.
Insurance against Accident to Workmen
24.2 The Contractor shall insure against such liability and shall
continue such insurance during the whole of the time that any
persons are employed by him on the Works. Provided that, in
respect of any persons employed by any Subcontractor, the
Contractor's obligations to insure as aforesaid under this Sub-
Clause shall be satisfied if the Subcontractor shall have insured
against the liability in respect of such persons in such manner
that the Employer is indemnified under the policy, but the
Contractor shall require such Subcontractor to produce to the
Employer, when required, such policy of insurance and the
receipt for the payment of the current premium.
Evidence and terms of Insurances
25.1 The Contractor shall provide evidence to the Employer prior to
the start of work at the Site that the insurances required under
the Contract have been effected and shall, within 84 days of the
Commencement Date, provide the insurance policies to the
Employer. When, providing such evidence and such policies to
the Employer, the Contractor shall notify the Engineer of so
doing. Such insurance policies shall be consistent with the
general terms agreed prior to the issue of the Letter of
Acceptance. The Contractor shall effect all insurances for which
he is responsible with insurers and in terms approved by the
Employer.
Adequacy of Insurances
25.2 The Contractor shall notify the insurers of changes in the nature,
extent or programme for the execution of the Works and ensure
the adequacy of the insurances at all times in accordance with
the terms of the Contract and shall, when required, produce to
the Employer the insurance policies in force and the receipts for
payment of the current premiums.
Remedy on Contractor’s Failure to Insure
25.3 If the Contractor fails to effect and keep in force any of the
insurances required under the Contract or fails to provide the
policies to the Employer within the period required by Sub-
Clause 25. 1, then and in any such case the Employer may effect
and keep in force any such insurances and pay any premium as
Annexure VIII-b 117
may be necessary for that purpose and from time to time deduct
the amount so paid from any monies due or to become due to the
Contractor, or recover the same as a debt due from the
Contractor.
Compliance with Policy conditions
25.4 In the event that the Contractor or the Employer fails to comply
with conditions imposed by the insurance policies effected
pursuant to the Contract, each shall indemnify the other against
all losses and claims arising from such failure.
Compliance with Statutes, Regulations
26.1 The Contractor shall conform in all respects, including by the
giving of all notices and the paying of all fees, with the
provisions of:
(a) any National or State Statute, Ordinance or other Law, or any
regulation, or bye-law of any local or other duly constituted
authority in relation to the execution and completion of the
Works and the remedying of any defects therein, and
(b) the rules and regulations of all public bodies and companies
whose property or rights are affected or may be affected in any
way by the Works, and the Contractor shall keep the Employer
indemnified against all penalties and liability of every kind for
breach of any such provisions. Provided always that the
Employer shall be responsible for obtaining any planning, zoning
or other similar permission required for the Works to proceed and
shall indemnify the Contractor in accordance with Sub-Clause
22.3.
Fossils 27.1 All fossils, coins, articles of value or antiquity and structures and
other remains or things of geological or archaeological interest
discovered on the Site shall, as between the Employer and the
Contractor, be deemed to be the absolute property of the
Employer. The Contractor shall take reasonable precautions to
prevent his workmen or any other persons from removing or
damaging any such article or thing and shall, immediately upon
discovery thereof and before removal, acquaint the Engineer of
such discovery and carry out the Engineer's instructions for
dealing with the same. If, by reason of such instructions, the
Contractor suffers delay and/or incurs costs then the Engineer
shall, after due consultation with the Employer and the
Contractor, determine:
(a) any extension of time to which the Contractor is entitled
under Clause 44, and (h) the amount of such costs which shall be
added to the Contract Price,
and shall notify the Contractor accordingly, with a copy to the
Employer.
Annexure VIII-b 118
Patent Rights 28.1 The Contractor shall save harmless and indemnify the Employer
from and against all claims and proceedings for or on account of
infringement of any patent rights, design trademark or name or
other protected rights in respect of any Contractor's Equipment,
materials or Plant used for or in connection with or for
incorporation in the Works and from and against all damages,
costs, charges and expenses whatsoever in respect thereof or in
relation thereto, except where such infringement results from
compliance with the design or Specification provided by the
Engineer.
Royalties 28.2 Except where otherwise stated, the Contractor shall pay all
tonnage and other royalties, rent and other payments or
compensation, if any, for getting stone, sand, gravel, clay or other
materials required for the Works.
Interference with Traffic and Adjoining Properties
29.1 All operations necessary for the execution and completion of the
Works and the remedying of any defects therein shall, so far as
compliance with the requirements of the Contract permits, to be
carried on so as not to interfere unnecessarily or improperly with:
(a) the convenience of the public, or
(b) the access to, use and occupation of public or private roads
and footpaths to or of properties whether in the possession of the
Employer or of any other person.
The Contractor shall save harmless and indemnify the Employer
in respect of all claims, proceedings, damages, costs, charges and
expenses whatsoever arising out of, or in relation to, any such
matters insofar as the Contractor is responsible thereof.
Avoidance of Damage to Roads
30.1 The contractor shall use every reasonable means to prevent any
of the roads or bridges communicating with or on the routes to
the Site from being damaged or injured by any traffic of the
Contractor or any of his Subcontractors and, in particular, shall
select routes, choose and use vehicles and restrict and distribute
loads so that any such extraordinary traffic as will inevitably
arise from the moving of materials, Plant, Contractor’s
Equipment or Temporary Works from and to the Site shall be
limited, as far as reasonably possible, and so that no unnecessary
damages or injury may be occasioned to such roads and bridges.
Transport of Contractor’s Equipment or Temporary Works
30.2 Save insofar as the Contract otherwise provides, the Contractor
shall be responsible for and shall pay the cost of strengthening
any bridges or altering or improving any road communicating
with or on the routes to the Site to facilitate the movement of
Contractor's Equipment or Temporary Works and the Contractor
shall indemnify and keep indemnified the Employer against all
claims for damage to any such road or bridge caused by such
Annexure VIII-b 119
movement, including such claims as may be made directly
against the Employer, and shall negotiate and pay all claims
arising solely out of such damage.
Transport of Materials or Plant
30.3 If, notwithstanding Sub-Clause 30.1, any damage occurs to any
bridge or road communicating with or on the routes to the Site
arising from the transport of materials or Plant, the Contractor
shall notify the Engineer with a copy to the Employer, as soon as
he becomes aware of such damage or as soon as he receives any
claim from the authority entitled to make such claim. Where
under any law or regulation the haulier of such materials or Plant
is required to indemnify the road authority against damage the
Employer shall not be liable for any costs, charges or expenses in
respect thereof or in relation thereto. In other cases the Employer
shall negotiate the settlement of and pay all sums due in respect
of such claim and shall indemnify the Contractor in respect
thereof and in respect of all claims, proceedings, damages, costs,
charges and expenses in relation thereto. Provided that if and so
far as any such claim or part thereof is, in the opinion of the
Engineer, due to any failure on the part of the Contractor to
observe and perform his obligations under Sub-Clause 30.1, then
the amount, determined by the Engineer, after due consultation
with the Employer and the Contractor, to be due to such failure
shall be recoverable from the Contractor by the Employer and
may be deducted by the Employer from any monies due or to
become due to the Contractor and the Engineer shall notify the
Contractor accordingly, with a copy to the Employer. Provided
also that the Employer shall notify the Contractor whenever a
settlement is to be negotiated and, where any amount may be due
from the Contractor, the Employer shall consult with the
Contractor before such settlement is agreed.
Waterborne Traffic
30.4 Where the nature of the Works is such as to require the use by the
Contractor of waterborne transport the foregoing provisions of
this Clause shall be construed as though “road” included a lock,
dock, sea wall or other structure related to a waterway and
“vehicle” included craft, and shall have effect accordingly.
Opportunities for other Contractors
31.1 The Contractor shall, in accordance with the requirements of the
Engineer, afford all reasonable opportunities for carrying out
their work to:
(a) any other contractors employed by the Employer and their
workmen,
(b) the workmen of the Employer, and
(c) the workmen of any duly constituted authorities who may be
employed in the execution on or near the Site of any work not
included in the Contract or of any contract which the Employer
Annexure VIII-b 120
may enter into in connection with or ancillary to the Works.
Facilities for other Contractors
31.2 If, however, pursuant to Sub-Clause 31.1 the Contractor shall, on
the written request of the Engineer:
(a) make available to any such other contractor, or to the
Employer or any such authority, any roads or ways for the
maintenance of which the Contractor is responsible.
(b) permit the use, by any such, of Temporary Works or
Contractor’s Equipment on the Site, or
(c) provide any other service of whatsoever nature for any such,
the Engineer shall determine an addition to the Contract Price in
accordance with Clause 52 and shall notify the Contractor
accordingly, with a copy to the
Employer.
Contractor to keep Site Clear
32.1 During the execution of the Works the Contractor shall keep the
Site reasonably free from all unnecessary obstruction and shall
store or dispose of any Contractor's Equipment and surplus
materials and clear away and remove from the Site any wreckage,
rubbish or Temporary Works no longer required.
Clearance of Site on Completion
33.1 Upon the issue of any Taking-Over Certificate the Contractor
shall clear away and remove from that part of the Site to which
such Taking-Over Certificate relates all Contractor's Equipment,
surplus material, rubbish and Temporary Works of every kind,
and leave such part of the Site and Works clean and in a
workmanlike condition to the satisfaction of the Engineer.
Provided that the Contractor shall be entitled to retain on Site,
until the end of the Defects Liability Period, such materials,
Contractor's Equipment and Temporary Works as are required by
him for the purpose of fulfilling his obligations during the
Defects Liability Period.
Labour
Engagement of Staff and Labour
34.1 The Contractor shall, unless otherwise provided in the Contract,
make his own arrangements for the engagement of all staff and
labour, local or other, and for their payment, housing, feeding
and transport.
Returns of Labour and Contractor’s Equipment
35.1 The Contractor shall, if required by the Engineer, deliver to the
Engineer a return in detail, in such form and at such intervals as
the Engineer may prescribe, showing the staff and the numbers of
the several classes of labour from time to time employed by the
Contractor on the Site and such information respecting
Contractor's Equipment as the Engineer may require.
Annexure VIII-b 121
Materials, Plant and Workmanship
Quality of materials, Plant and Workmanship
36.1 All materials, Plant and workmanship shall be:
(a) of the respective kinds described in the Contract and in
accordance with the Engineer's instructions, and
(b) subjected from time to time to such test as the Engineer may
require at the place of manufacture, fabrication or preparation, or
on the Site or at such other place or places as may be specified in
the Contract, or at all or any of such places.
The Contractor shall provide such assistance, labour, electricity,
fuels, stores apparatus and instruments as are normally required
for examining, measuring and testing any materials or Plant and
shall supply samples of materials, before incorporation in the
Works, for testing as may be selected and required by the
Engineer.
Cost of Samples 36.2 All samples shall be supplied by the Contractor at his own cost if
the supply thereof is clearly intended by or provided for in the
Contract.
Cost of Tests 36.3 The cost of making any test shall be borne by the Contractor if
such test is:
(a) clearly intended by or provided for in the Contract, or
(b) particularised in the Contract (in cases only of a test under
load or of a test to ascertain whether the design of any finished or
partially finished work is appropriate for the purposes which it
was intended to fulfil) in sufficient detail to enable the
Contractor to price or allow for the same in his Tender.
Cost of Tests not Provided for
36.4 If any test required by the Engineer which is:
(a) not so intended by or provided for,
(b) (in the cases above mentioned) not so particularised, or
(c) (though so intended or provided for) required by the Engineer
to be carried out at any place other than the Site or the place of
manufacture, fabrication or preparation of the materials or Plant
tested, shows the materials, plant or workmanship not to be in
accordance with the provisions of the Contract to the satisfaction
of the Engineer, then the cost of such test shall be borne by the
Contractor, but in any other case Sub-Clause 36.5 shall apply.
Annexure VIII-b 122
Engineer’s Determination where Tests not Provided for
36.5 Where, pursuant to Sub-Clause 36.4, this Sub-Clause applies the
Engineer shall, after due consultation with the Employer and the
Contractor, determine:
(a) any extension of time to which the Contractor is entitled
under Clause 44, and (b) the amount of such costs, which shall be
added to the Contract Price, and shall notify the Contractor
accordingly, with a copy to the Employer.
Inspection of Operations
37.1 The Engineer, and any person authorised by him, shall at all
reasonable times have access to the Site and to all workshops and
places where materials or Plant are being manufactured,
fabricated or prepared for the Works and the Contractor shall
afford every facility for and every assistance in obtaining the
right to such access.
Inspection and Testing
37.2 The Engineer shall be entitled, during manufacture, fabrication or
preparation to inspect and test the materials and Plant to be
supplied under the Contract. If materials or Plant are being
manufactured, fabricated or prepared in workshops or places
other than those of the Contractor, the Contractor shall obtain
permission for the Engineer to carry out such inspection and
testing in those workshops or places. Such inspection or testing
shall not release the Contractor from any obligation under the
Contract.
Dates for Inspection and Testing
37.3 The Contractor shall agree with the Engineer on the time and
place for the inspection or testing of any materials or Plant as
provided in the Contract. The Engineer shall give the Contractor
not less than 24 hours notice of his intention to carry out the
inspection or to attend the tests. If the Engineer, or his duly
authorised representative, does not attend on the date agreed, the
Contractor may, unless otherwise instructed by the Engineer,
proceed with the tests, which shall be deemed to have been made
in the presence of the Engineer. The Contractor shall forthwith
forward to the Engineer duly certified copies of the test readings.
If the Engineer has not attended the tests, he shall accept the said
readings as accurate.
Annexure VIII-b 123
Rejection 37.4 If, at the time and place agreed in accordance with Sub-Clause
37.3, the materials or Plant are not ready for inspection or testing
or if, as a result of the inspection or testing referred to in this
Clause, the Engineer determines that the materials or Plant are
defective or otherwise not in accordance with the Contract, he
may reject the materials or Plant and shall notify the Contractor
thereof immediately. The notice shall state the Engineer's
objections with reasons. The Contractor shall then promptly
make good the defect or ensure that rejected materials or Plant
comply with the Contract. If the Engineer so requests, the tests of
rejected materials or Plant shall be made or repeated under the
same terms and conditions. All costs incurred by the Employer
by the repetition of the tests shall, after due consultation with the
Employer and the Contractor, be determined by the Engineer and
shall be recoverable from the Contractor by the Employer and
may be deducted from any monies due or to become due to the
Contractor and the Engineer shall notify the Contractor
accordingly, with a copy to the Employer.
Independent Inspection
37.5 The Engineer may delegate inspection and testing of materials or
Plant to an independent inspector. Any such delegation shall be
effected in accordance with Sub-Clause 2.4 and for this purpose
such independent inspector shall be considered as an assistant of
the Engineer. Notice of such appointment (not being less than 14
days) shall be given by the Engineer to the Contractor.
Examination of Work before Covering up
38.1 No part of the Works shall be covered up or put out of view
without the approval of the Engineer and the Contractor shall
afford full opportunity for the Engineer to examine and measure
any such part of the Works which is about to be covered up or
put out of view and to examine foundations before any part of the
Works is placed thereon. The Contractor shall give notice to the
Engineer whenever any such part of the Works or foundations is
or are ready or about to be ready for examination and the
Engineer shall, without unreasonable delay, unless he considers it
unnecessary and advises the Contractor accordingly, attend for
the purpose of examining and measuring such part of the Works
or of examining such foundations.
Uncovering and Making Openings
38.2 The Contractor shall uncover any part of the Works or make
openings in or through the same as the Engineer may from time
to time instruct and shall reinstate and make good such part. If
any such part has been covered up or put out of view after
compliance with the requirement of Sub-Clause 38.1 and is found
to be executed in accordance with the Contract, the Engineer
shall after due consultation with the Employer and the
Contractor, determine the amount of the Contractor's costs in
respect of such of uncovering, making openings in or through,
reinstating and making good the same, which shall be added to
the Contract Price, and shall notify the Contractor accordingly,
Annexure VIII-b 124
with a copy to the Employer. In any other case all costs shall be
borne by the Contractor.
Removal of Improper work, Materials or Plant
39.1 The Engineer shall have authority to issue instructions from time
to time, for:
(a) the removal from the Site, within such time or times as may
be specified in the instruction, of any materials or Plant which, in
the opinion of the Engineer, are not in accordance with the
Contract,
(b) the substitution of proper and suitable materials or Plant, and
(c) the removal and proper re-execution, notwithstanding any
previous test thereof or interim payment therefore, of any work
which, in respect of
(i) materials, Plant or workmanship, or
(ii) design by the Contractor or for which he is responsible, is
not, in the opinion of the Engineer, in accordance with the
Contract.
Default of Contractor in Compliance
39.2 In case of default on the part of the Contractor in carrying out such instruction within the time specified therein or, if none, within a reasonable time, the Employer shall be entitled to employ and pay other persons to carry out the same and all costs consequent thereon or incidental thereto shall, after due consultation with the Employer and the Contractor, be determined by the Engineer and shall be recoverable from the Contractor by the Employer, and may be deducted by the Employer from any monies due or to become due to the Contractor and the Engineer shall notify the Contractor accordingly, with a copy to the Employer.
Suspension
Suspension of Work
40.1 The Contractor shall, on the instructions of the Engineer, suspend
the progress of the Works or any part thereof for such time and in
such manner as the Engineer may consider necessary and shall,
during such suspension, properly protect and secure the Works or
such part thereof so far as is necessary in the opinion of the
Engineer. Unless such suspension is:
(a) otherwise provided for in the Contract,
(b) necessary by reason of some default of or breach of contract
by the contractor or for which he is responsible,
(c) necessary by reason of climatic conditions on the Site, or (d)
necessary for the proper execution of the Works or for the safety
of the Works or any part thereof (save to the extent that such
Annexure VIII-b 125
necessity arises from any act or default by the Engineer or the
Employer or from any of risks defined in Sub-Clause 20.4),
Sub-Clause 40.2 shall apply.
Engineer’s Determination following Suspension
40.2 Where, pursuant to Sub-Clause 40.1, this Sub-Clause applies the
Engineer shall, after due consultation with the Employer and the
Contractor, determine:
(a) any extension of time to which the Contractor is entitled
under Clause 44, and
(b) the amount, which shall be added to the Contract Price, in
respect of the cost incurred by the Contractor by reason of such
suspension, and shall notify the Contractor accordingly, with a
copy to the Employer.
Suspension lasting more than 84 Days
40.3 If the progress of the Works or any part thereof is suspended on
the instructions of the Engineer and if permission to resume work
is not given by the Engineer within a period of 84 days from the
date of suspension then, unless such suspension is within
paragraph (a), (b), (c) or (d) of Sub-Clause 40.1, the Contractor
may give notice to the Engineer requiring permission, within 28
days from the receipt thereof, to proceed with the Works or that
part thereof in regard to which progress is suspended. If, within
the said time, such permission is not granted, the Contractor may,
but is not bound to elect to treat the suspension, where it affects
part only of the Works, as an omission of such part under Clause
51 by giving a further notice to the Engineer to that effect, or,
where it affects the whole of the Works, treat the suspension as
an event of default by the Employer and terminate his
employment under the Contract in accordance with the
provisions of Sub-Clause 69.1, whereupon the provisions of Sub-
Clauses 69.2 and 69.3 shall apply.
Commencement and Delays
Commencement of Works
41.1 The Contractor shall commence the Works as soon as is
reasonably possible after the receipt by him of a notice to this
effect from the Engineer, which notice shall be issued within the
time stated in the Appendix to Tender after the date of the Letter
of Acceptance. Thereafter, the Contractor shall proceed with the
Works with due expedition and without delay.
Possession of Site and Access Thereto
42.1 Save insofar as the Contract may prescribe:
(a) the extent of portions of the Site of which the Contractor is to
be given possession from time to time,
(b) the order in which such portions shall be made available to
the Contractor, and, subject to any requirement in the Contract as
Annexure VIII-b 126
to the order in which the Works shall be executed, the Employer
will, with the Engineer's notice to commence the Works, give to
the Contractor possession of
(c) so much of the Site, and
(d) such access as, in accordance with the Contract, is to be
provided by the Employer as maybe required to enable the
Contractor to commence and proceed with the execution of the
Works in accordance with the programme referred to in Clause
14, if any, and otherwise in accordance with such reasonable
proposals as the Contractor shall, by notice to the Engineer with a
copy to the Employer, make. The Employer will, from time to
time as the Works proceed, give to the Contractor possession of
such further portions of the Site as may be required to enable the
Contractor to proceed with the execution of the Works with due
dispatch in accordance with such programme or proposals, as the
case may be.
Failure to Give Possession
42.2 If the Contractor suffers delay and/or incurs costs from failure on
the part of the Employer to give position in accordance with the
terms of Sub-Clauses 42.1, the Engineer shall, after due
consultation with the Employer and the Contractor determine:
(a) an extension of time to which the Contractor is entitled under
Clause 44, and
(b) the amount of such costs, which shall be added to the
Contract Price, and shall notify the Contractor accordingly with a
copy to the Employer.
Rights of way and facilities
42.3 The Contractor shall bear all costs and charges for special or
temporary rights of way required by him in connection with
access to the Site. The Contractor shall also provide at his own
cost any additional facilities outside the Site required by him for
the purposes of the Works.
Time for Completion
43.1 The whole of the Works and, if applicable any Section required
to be completed within a particular time as stated in the
Appendix to Tender, shall be completed, in accordance with the
provisions of Clause 48, within the time stated in the Appendix to
Tender for the whole of the Works or the Section (as the case
may be), calculated from the Commencement Date, or such
extended time as may be allowed under Clause 44.
Extension of Time for Completion
44.1 in the event of:
(a) the amount or nature of extra or additional work.
(b) any cause of delay referred to in these Conditions,
Annexure VIII-b 127
(c) exceptionally adverse climatic conditions,
(d) any delay, impediment or prevention by the Employer, or
(e) other special circumstances which may occur, other than
through a default of or breach of contract by the Contractor or for
which he is responsible, being such as fairly to entitle the
Contractor to an extension of the Time for completion of the
Works, - or any Section or part thereof, the Engineer shall, after
due consultation with the Employer and the Contractor,
determine the amount of such extension and shall notify the
Contractor accordingly, with a copy to the Employer.
Contractor to Provide Notification and Detailed Particulars
44.2 Provided that the Engineer is not bound to make any
determination unless the Contractor has
(a) within 28 days after such event has first arisen notified the
Engineer with a copy to the Employer, and
(b) within 28 days, or such other reasonable time as may be
agreed by the Engineer after such notification submitted to the
Engineer detailed particulars of
any extension of time to which he may consider himself entitled
in order that such submission may be investigated at the time.
Interim Determination of Extension
44.3 Provided also that where an event has a continuing effect such
that it is not practicable for the Contractor to submit detailed
particulars within the period of 28 days referred to in Sub-Clause
44.2(b), he shall nevertheless be entitled to an extension of time
provided that he has submitted to the Engineer interim particulars
at intervals of not more than 28 days and final particulars within
28 days of the end of the effects resulting from the event. On
receipt of such interim particulars, the Engineer shall, without
undue delay, make an interim determination of extension of time
and on receipt of the final particulars, the Engineer shall review
all the circumstances and shall determine an overall extension of
time in regard to the event. In both such cases the Engineer shall
make his determination after due consultation with the Employer
and the Contractor and shall notify the Contractor of the
determination, with a copy to the Employer. No final review shall
result in a decrease of any extension of time already determined
by the Engineer.
Restriction on Working Hours
45.1 Subject to any provision to the contrary contained in the
Contract, none of the Works shall, save as hereinafter provided,
be carried on during the night or on locally recognized days of
rest without the consent of the Engineer, except when work is
unavoidable or absolutely necessary for the saving of life or
property or for the safety of the Works, in which case the
Contractor shall immediately advise the Engineer. Provided that
Annexure VIII-b 128
the provisions of this Clause shall not be applicable in the case of
any work which it is customary to carry out by multiple shifts.
Rate of Progress
46.1 If for any reason, which does not entitle the Contractor to an
extension of time, the rate of progress of the Works or any
Section is at any time, in the opinion of the Engineer, too slow to
comply with the Time for Completion, the Engineer shall so
notify the Contractor who shall thereupon take such steps as are
necessary, subject to the consent of the Engineer, to expedite
progress so as to comply with the Time for Completion. The
Contractor shall not be entitled to any additional payment for
taking such steps. If, as a result of any notice given by the
Engineer under this Clause, the Contractor considers that it is
necessary to do any work at night or on locally recognised days
of rest, he shall be entitled to seek the consent of the Engineer so
to do. Provided that if any steps, taken by the Contractor in
meeting his obligations under this Clause, involve the Employer
in additional supervision costs, such costs shall, after due
consultation with the Employer and the Contractor, be
determined by the Engineer and shall be recoverable from the
Contractor by the Employer, and may be deducted by the
Employer from any monies due or to become due to the
Contractor and the Engineer shall notify the Contractor
accordingly, with a copy to the Employer.
Liquidated Damages for Delay
47.1 If the Contractor fails to comply with the Time for Completion in
accordance with Clause 48, for the whole of the Works or, if
applicable, any Section within the relevant time prescribed by
Clause 43, then the Contractor shall pay to the Employer the
relevant sum stated in the Appendix to Tender as liquidated
damages for such default and not as a penalty (which sum shall
be the only monies due from the Contractor for such default) for
every day or part of a day which shall elapse between the
relevant Time for Completion and the date stated in a Taking-
Over Certificate of the whole of the Works or the relevant
Section, subject to the applicable limit stated in the Appendix to
Tender. The Employer may, without prejudice to any other
method of recovery, deduct the amount of such damages from
any monies due or to become due to the Contractor. The payment
or deduction of such damages shall not relieve the Contractor
from his obligation to complete the Works, or from any other of
his obligations and liabilities under the Contract.
Reduction of liquidated Damages
47.2 If, before the Time for Completion of the whole of the Works or,
if applicable, any Section, a Taking-Over Certificate has been
issued for any part the Works or of a Section, the liquidated
damages for delay in completion of the remainder of the Works
or of that Section shall, for any period of delay after the date
stated in such Taking-Over Certificates, and in the absence of
alternative provisions in the Contract, be reduced in the
Annexure VIII-b 129
proportion which the value of the part so certified bears to the
value of the whole of the Works or Section, as applicable. The
provisions of this Sub-Clause shall only apply to the rate of
liquidated damages and shall not affect the limit thereof.
Taking-Over Certificate
48.1 When the whole of the Works have been substantially completed
and have satisfactorily passed any Tests on Completion
prescribed by the Contract, the Contractor may give a notice to
that effect to the Engineer, with a copy to the Employer,
accompanied by a written undertaking to finish with due
expedition any outstanding work during the Defects Liability
Period. Such notice and undertaking shall be deemed to be a
request by the Contractor for the Engineer to issue a Taking-Over
Certificate in respect of the Works. The Engineer shall, within 21
days of the date of delivery of such notice, either issue to the
Contractor, with a copy to the Employer, a Taking-Over
Certificate, stating the date on which, in his opinion, the Works
were substantially completed in accordance with the Contract, or
give instructions in writing to the Contractor specifying all the
work which, in the Engineer's opinion, is required to be done by
the Contractor before the issue of such Certificate. The Engineer
shall also notify the Contractor of any defects in the Works
affecting substantial completion that may appear after such
instructions and before completion of the Works specified
therein. The Contractor shall be entitled to receive such Taking-
Over Certificate within 21 days of completion, to the satisfaction
of the Engineer, of the Works so specified and remedying any
defects so notified.
Taking-Over of Section of Part
48.2 Similarly, in accordance with the procedure set out in Sub-Clause
48.1, the Contractor may request and the Engineer shall issue a
Taking-Over Certificate in respect of:
(a) any Section in respect of which a separate Time for
Completion is provided in the Appendix to Tender,
(b) any substantial part of the Permanent Works which has been
both completed to the satisfaction of the Engineer and, otherwise
than as provided for in the Contract, occupied or used by the
Employer, or
(c) any part of the Permanent Works which the Employer has
elected to occupy or use prior to completion (where such prior
occupation or use is not provided for in the Contract or has not
been agreed by the Contractor as a temporary measure).
Substantial Completion of Parts
48.3 If any part of the Permanent Works has been substantially
completed and has satisfactorily passed any Tests on Completion
prescribed by the Contract, the Engineer may issue a Taking-
Over Certificate in respect of that part of the Permanent Works
Annexure VIII-b 130
before completion of the whole of the Works and, upon the issue
of such Certificate, the Contractor shall be deemed to have
undertaken to complete with due expedition any outstanding
work in that part of the Permanent works during the Defects
Liability Period.
Surfaces Requiring Reinstatement
48.4 Provided that a Taking-Over Certificate given in respect of any
Section or part of the Permanent Works before completion of the
whole of the Works, shall not be deemed to certify completion of
any ground or surfaces requiring reinstatement unless such
Taking-Over Certificate shall expressly so state.
Defects Liability
Defects Liability Period
49.1 In these Conditions the expression "Defects Liability Period"
shall mean the defects liability period named in the Appendix to
Tender, calculated from:
(a) the date of completion of the Works certified by the Engineer
in accordance with Clause 48, or
(b) in the event of more than one certificate having been issued
by the Engineer under Clause 48, the respective dates so
certified, and in relation to the Defects Liability Period the
expression “the Works” shall be construed accordingly.
Completion of Outstanding Work and remedying Defects
49.2 To the intent that the Works shall, at or as soon as practicable
after expiration of the Defects Liability Period, be delivered to
the Employer in the condition required by the Contract, fair wear
and tear excepted, to the satisfaction of the Engineer, the
Contractor shall:
(a) complete the work, if any, outstanding on the date stated in
the Taking-Over Certificate as soon as practicable after such
date, and
(b) execute all such work of amendment, reconstruction, and
remedying defects, shrinkages or other faults as the Engineer
may, during the Defects Liability Period or within 14 days after
its expiration, as a result of an inspection made by or on behalf of
the Engineer prior to its expiration, instruct the Contractor to
execute.
Cost of Remedying Defects
49.3 All work referred to in Sub-Clause 49.2 (b) shall be executed by
the Contractor at his own cost if the necessity thereof is, in the
opinion of the Engineer, due to:
(a) the use of materials, Plant or, workmanship not in accordance
with the Contract,
Annexure VIII-b 131
(b) where the Contractor is responsible for the design of part of
the Permanent Works, any fault in such design, or
(c) the neglect or failure on the part of the Contractor to comply
with any obligation, expressed or implied, on the Contractor's
part under the Contract.
If, in the opinion of the Engineer, such necessity is due to any
other cause, he shall determine an addition to the Contract Price
in accordance with Clause 52 and shall notify the Contractor
accordingly, with a copy to the Employer.
Contractor’s failure to carry out Instructions
49.4 In case of default on the part of the Contractor in carrying out
such instruction within a reasonable time, the Employer shall be
entitled to employ and pay other persons to carry out the same
and if such work is work which, in the opinion of the Engineer,
the Contractor was liable to do at his own cost under the
Contract, then all costs consequent thereon or incidental thereto
shall, after due consultation with the Employer and the
Contractor, be determined by the Engineer and shall be
recoverable from the Contractor by the Employer, and may be
deducted by the Employer from any monies due or to become
due to the Contractor and the Engineer shall notify the Contractor
accordingly, with a copy to the Employer.
Contractor to search
50.1 If any defect, shrinkage or other fault in the Works appears at any
time prior to the end of the Defects Liability Period, the Engineer
may instruct the Contractor, with copy to the Employer, to search
under the directions of the Engineer for the cause thereof. Unless
such defect, shrinkage or other fault is one for which the
Contractor is liable under the Contract, the Engineer shall, after
due consultation with the Employer and the Contractor,
determine the amount in respect of the costs of such search
incurred by the Contractor, which shall be added to the Contract
Price and shall notify the Contractor accordingly, with a copy to
the Employer. If such defect, shrinkage or other fault is one for
which the Contractor is liable, the cost of the work carried out in
searching as aforesaid shall be borne by the Contractor and he
shall in such case remedy such defect, shrinkage or other fault at
his own cost in accordance with the provisions of Clause 49.
Alterations, Additions and Omissions
Variations 51.1 The Engineer shall make any variation of the form, quality or
quantity of the Works or any part thereof that may in his opinion,
be necessary and for that purpose, or if for any other reason it
shall, in his opinion, be appropriate, he shall have the authority to
instruct the Contractor to do and the Contractor shall do any of
the following:
Annexure VIII-b 132
(a) increase or decrease the quantity of any work included in the
Contract,
(b) omit any such work (but not if the omitted work is to be
carried out by the Employer or by another contractor).
(c) change the character or quality or kind of any such work,
(d) change the levels, lines, position and dimensions of any part
of the Works,
(e) execute additional work of any kind necessary for the
completion of the Works, or
(f) change any specified sequence or timing of construction of
any part of the Works.
No such variation shall in any way vitiate or invalidate the
Contract, but the effect, if any, of all such variations shall be
valued in accordance with Clause 52. Provided that where the
issue of an instruction to vary the Works is necessitated by some
default of or breach of contract by the Contractor or for which he
is responsible, any additional cost attributable to such default
shall be borne by the Contractor.
Instructions for Variation
51.2 The Contractor shall not make any such variation without an
instruction of the Engineer. Provided that no instruction shall be
required for increase or decrease in the quantity of any work
where such increase or decrease is not the result of an instruction
given under this Clause, but is the result of the quantities
exceeding or being less than those stated in the Bill of Quantities.
Valuation of Variations
52.1 All variations referred to in Clause 51 and any additions to the
Contract Price which are required to be determined in accordance
with Clause 52 (for the purposes of this Clause referred to as
"varied work"), shall be valued at the rates and prices set out in
the Contract if, in the opinion of the Engineer, the same shall be
applicable. If the Contract does not contain any rates or prices
applicable to the varied work, the rates and prices in the Contract
shall be used as the basis for valuation so far as may be
reasonable, failing which, after due consultation by the Engineer
with the Employer and the Contractor, suitable rates or prices
shall be agreed upon between the Engineer and the Contractor. In
the event of disagreement the Engineer shall fix such rates or
prices as are, in his opinion appropriate and shall notify the
Contractor accordingly, with a copy to the Employer. Until such
time as rates or prices are agreed or fixed, the Engineer shall
determine provisional rates or prices to enable on-account
payments to be included in certificates issued in accordance with
Clause 60.
Annexure VIII-b 133
Power of Engineer to Fix Rates
52.2 Provided that if the nature or amount of any varied work relative
to the nature or amount of the whole of the Works or to any part
thereof, is such that, in the opinion of the Engineer, the rate or
price contained in the Contract for any item of the Works is, by
reason of such varied work, rendered inappropriate or
inapplicable, then, after due consultation by the Engineer with
the Employer and the Contractor, a suitable rate or price shall be
agreed upon between the Engineer and the Contractor. In the
event of disagreement the Engineer shall fix such other rate or
price as is, in his opinion, appropriate and shall notify the
Contractor accordingly, with a copy to the Employer. Until such
time as rates or prices are agreed or fixed, the Engineer shall
determine provisional rates or prices to enable on-account
payments to be included in certificates issued in accordance with
Clause 60.
Provided also that no varied work instructed to be done by the
Engineer pursuant to Clause 51 shall be valued under Sub-Clause
52.1 or under this Sub-Clause unless, within 14 days of the date
of such instruction and, other than in the case of omitted work,
before the commencement of the varied work, notice shall have
been given either:
(a) by the Contractor to the Engineer of his intention to claim
extra payment or varied rate or price, or
(b) by the Engineer to the Contractor for his intention to vary a
rate or price.
Variations Exceeding 15 Percent
52.3 If, on the issue of the Taking-Over Certificate for the whole of
the Works, it is found that as a result of:
(a) all varied work valued under Sub-Clauses 52.1 and 52.2 and
(b) all adjustments upon measurement of the estimated quantities
set out in the Bill of Quantities, excluding provisional Sums,
dayworks and adjustments of price made under Clause 70, but
not from all other cause, there have been additions to or
deductions from the Contract Price which taken together are in
excess of 15 percent of the "Effective Contract Price" (which for
the purposes of this Sub-Clause shall mean the Contract Price,
excluding Provisional Sums, and allowance for dayworks, if any)
then and in such event (subject to any action already taken under
any other Sub-Clause of this Clause), after due consultation by
the Engineer with the Employer and the Contractor, there shall be
added to or deducted from the Contract Price such further sum as
may be agreed between the Contractor and the Engineer or,
failing agreement, determined by the Engineer having regard to
the Contractor's Site and general overhead costs of the Contract.
Annexure VIII-b 134
The Engineer shall notify the Contractor of any determination
made under this Sub-Clause, with a copy to the Employer. Such
sum shall be based only on the amount by which such additions
or deductions shall be in excess of 15 percent of the Effective
Contract Price.
Daywork 52.4 The Engineer may, if in his opinion it is necessary desirable,
issue an instruction that any varied work shall be executed on a
daywork basis. The Contractor shall then be paid for such varied
work under the terms set out in the daywork schedule included in
the Contract and at the rates and prices affixed thereto by him in
the Tender.
The Contractor shall furnish to the Engineer such receipts or
other vouchers as may be necessary to prove the amounts paid
and, before ordering materials, shall submit to the Engineer
quotations for the same for his approval.
In respect of such of the Works executed on a daywork basis, the
Contractor shall, during the continuance of such work, deliver
each day to the Engineer an exact list in duplicate of the names,
occupation and time of all workmen employed on such work and
a statement, also in duplicate, showing the description and
quantity of all materials and Contractor's Equipment used thereon
or therefore other than Contractor's Equipment which is included
in the percentage addition in accordance with such daywork
schedule. One copy of each list and statement will, if correct, or
when agreed, be signed by the Engineer and returned to the
Contractor.
At the end of each month the Contractor shall deliver to the
Engineer a priced statement of the labour, materials and
Contractor's Equipment, except as aforesaid, used and the
Contractor shall not be entitled to any payment unless such lists
and statements have been fully and punctually rendered.
Provided always that if the Engineer considers that for any reason
the sending of such lists or statements by the Contractor, in
accordance with the foregoing provision, was impracticable he
shall nevertheless, be entitled to authorized payment for such
work, either as daywork, on being satisfied as to the time
employed and the labour, materials and Contractor’s Equipment
used on such work, or at such value therefore as shall, in his
opinion, be fair and reasonable.
Procedure for Claims
Annexure VIII-b 135
Notice of Claims 53.1 Notwithstanding any other provision of the Contract, if the
Contractor intends to claim any additional payment pursuant to
any Clause of these Conditions or otherwise, he shall give notice
of his intention to the Engineer, with a copy to the Employer,
within 28 days after the event giving rise to the claim has first
arisen.
Contemporary Records
53.2 Upon the happening of the event referred to in Sub-Clause 53.1,
the Contractor shall keep such contemporary records as may
reasonably be necessary to support any claim he may
subsequently wish to make. Without necessarily admitting the
Employer’s liability, the Engineer shall, on receipt of a notice
under Sub-Clause 53.1, inspect such contemporary records and
may instruct the Contractor to keep any further contemporary
records as are reasonable and may be material to the claim of
which notice has been given. The Contractor shall permit the
Engineer to inspect all records kept pursuant to this Sub-Clause
and shall supply him with copies thereof as and when the
Engineer so instructs.
Substantiation of Claims
53.3 Within 28 days, or such other reasonable time as may agreed by
the Engineer of giving notice under Sub-Clause 53.1, the
Contractor shall send to the Engineer an account giving detailed
particulars of the amount claimed and the grounds upon which
the claim is based. Where the event giving rise to the claim has a
continuing effect, such account shall be considered to be an
interim account and the Contractor shall, at such intervals as the
Engineer may reasonably require, send further interim accounts
giving the accumulated amount of the claim and any further
grounds upon which it is based. In cases where interim accounts
are sent to the Engineer, the Contractor shall send a final account
within 28 days of the end of the effects resulting from the event.
The Contractor shall, if required by the Engineer so to do, copy
to the Employer all accounts sent to the Engineer pursuant to this
Sub-Clause.
Failure to Comply
53.4 If the Contractor fails to comply with any of the provisions of
this Clause in respect of any claim which he seeks to make, his
entitlement to payment in respect thereof shall not exceed such
amount as the Engineer or any arbitrator or arbitrators appointed
pursuant to Sub-Clause 67.3 assessing the claims considers to be
verified by contemporary records (whether or not such records
were brought to the Engineer's notice, as required under Sub-
Clauses 53.2 and 53.3).
Payment of Claims
53.5 The Contractor shall be entitled to have included in any Interim
payment certified by the Engineer pursuant to Clause 60 such
amount in respect of any claim as the Engineer, after due
consultation with the Employer and the Contractor, may consider
due to the Contractor provided that the Contractor has supplied
Annexure VIII-b 136
sufficient particulars to enable the Engineer to determine the
amount due. If such particulars are insufficient to substantiate the
whole of the claim, the Contractor shall be entitled to payment in
respect of such part of the claim as such particulars may
substantiate to the satisfaction of the Engineer. The Engineer
shall notify the Contractor of any determination made under this
Sub-Clause, with a copy to the Employer.
Contractor’s Equipment, Temporary Works and Materials
Contractor’s Equipment, Temporary Works and Materials; Exclusive use for the works
54.1 All Contractor's Equipment, Temporary Works and materials
provided by the Contractor shall, when brought on to the Site, be
deemed to be exclusively intended for the execution of the Works
and the Contractor shall not remove the same or any part thereof,
except for the purpose of moving it from one part of the Site to
another, without the consent of the Engineer. Provided that
consent shall not be required for vehicles engaged in transporting
any staff, labour, Contractor's Equipment, Temporary Works,
Plant or materials to or from the Site.
Employer not Liable for Damage
54.2 The Employer shall not at any time to be liable, save as
mentioned in Clauses 20 and 65, for the loss of or damage to any
of the said Contractor Equipment, Temporary Works or
materials.
Customs Clearance
54.3 The Employer will use his best endeavours in assisting the
Contractor, where required, in obtaining clearance through the
Customs of Contractor’s Equipment, materials and other things
required for the Works.
Re-exports of Contractor’s Equipment
54.4 In respect of any Contractor’s Equipment which the Contractor
has imported for the purposes of the Works, the Employer will
use his best endeavours to assist the Contractor, where required,
in procuring any necessary Government consent to the re-export
of such Contractor’s Equipment by the Contractor upon the
removal thereof pursuant to the terms of the Contract.
Conditions of Hire of Contractor’s Equipment
54.5 With a view to securing, in the event of termination under Clause
63, the continued availability, for the purpose of executing the
Works, of any hired Contractor’s Equipment, the Contractor shall
not bring on to the Site any hired Contractor’s Equipment unless
there is an agreement for the hire thereof (which agreement shall
be deemed not to include an agreement for hire purchase) which
contains a provision that the owner thereof will, on request in
writing made by the Employer within 7 days after the date on
which any termination has become effective, and on the
Employer undertaking to pay all hire charges in respect thereof
from such date, hire such Contractor’s Equipment to the
Annexure VIII-b 137
Employer on the same terms in all respects as the same was hired
to the Contractor save that the Employer shall be entitled to
permit the use thereof by any other contractor employed by him
for the purpose of executing and completing the Works and
remedying any defects therein, under the terms of the said Clause
63.
Costs for the purpose of Clause 63
54.6 In the event of the Employer entering into any agreement for the
hire of Contractor's Equipment pursuant to Sub-Clause 54.5, all
sums properly paid by the Employer under the provisions of any
such agreement and all costs incurred by him (including stamp
duties) in entering into such agreement shall be deemed, for the
purpose of Clause 63, to be part of the cost of executing and
completing the Works and the remedying of any defects therein.
Incorporation of Clause in Subcontracts
54.7 The Contractor shall, where entering into any subcontract for the
execution of any part of the Works, incorporate in such
subcontract (by reference or otherwise) the provisions of this
Clause in relation to Contractor’s Equipment, Temporary Works
or materials brought on to the Site by the Subcontractor.
Approval of Materials not Implied
54.8 The operation of this Clause shall not be deemed to imply any
approval by the Engineer of the materials or other matters
referred to therein nor shall it prevent the rejection of any such
materials at any time by the Engineer.
Measurement
Quantities 55.1 The quantities set out in the Bill of Quantities are the estimated
quantities for the Works, and they are not to be taken as the
actual and correct quantities of the Works to be executed by the
Contractor in fulfilment of his obligations under the Contract.
Works to be Measured
56.1 The Engineer shall, except as otherwise stated, ascertain and
determine by measurement the value of the Works in accordance
with the Contract and the Contractor shall be paid that value in
accordance with Clause 60. The Engineer shall, when he requires
any part of the Works to be measured, give reasonable notice to
the Contractor's authorised agent, who shall:
(a) forthwith attend or send a qualified representative to assist the
Engineer in making such measurement, and
(b) supply all particulars required by the Engineer.
Should the Contractor not attend, or neglect or omit to send such
representative, then the measurement made by the Engineer or
approved by him shall be taken to be the correct measurement of
such part of the Works. For the purpose of measuring such
Permanent works as are to be measured by records and drawings,
Annexure VIII-b 138
the Engineer shall prepare records and drawings as the work
proceeds and the Contractor, as and when called upon to do so in
writing, shall, within 14 days, attend to examine and agree such
records and drawings with the Engineer and shall sign the same
when so agreed. If the Contractor does not attend to examine and
agree such records and drawings, they shall be taken to be
correct. If, after examination of such records and drawings, the
Contractor does not agree the same or does not sign the same as
agreed, they shall nevertheless be taken to be correct, unless the
Contractor, within 14 days of such examination, lodges with the
Engineer notice of the respects in which such records and
drawings are claimed by him to be incorrect. On receipt of such
notice, the Engineer shall review the records and drawings and
either confirm or vary them.
Method of Measurement
57.1 The Works shall be measured net, notwithstanding any general or
local customs, except where otherwise provided for in the
Contract.
Breakdown of Lump sum Items
57.2 For the purposes of statements submitted in accordance with
Sub-Clause 60.1, the Contractor shall submit to the Engineer,
within 28 days after the receipt of the Letter of Acceptance, a
breakdown for each of the lump sum items contained in the
Tender. Such breakdowns shall be subject to the approval of the
Engineer.
Provisional Sums
Definition of “Provisional Sums”
58.1 “Provisional Sum” means a sum included in the Contract and so
designated in the Bill of Quantities for the execution of any part
of the Works or for the supply of goods, materials, Plant or
services, or for contingencies, which sum may be used, in whole
or in part, or not at all, on the instructions of the Engineer. The
Contractor shall be entitled to only such amounts in respect of the
work, supply or contingencies to which such Provisional Sums
relate as the Engineer shall determine in accordance with this
Clause. The Engineer shall notify the Contractor of any
determination made under this Sub-Clause, with a copy to the
Employer.
Use of Provisional Sums
58.2 In respect of every Provisional Sum the Engineer shall have
authority to issue instructions for the execution of work or for the
supply of goods, materials, Plant or services by:
(a) the Contractor, in which case the Contractor shall be entitled
to an amount equal to the value thereof determined in accordance
with Clause 52, and
(b) a nominated Subcontractor, as hereinafter defined, in which
case the sum to be paid to the Contractor therefore shall be
Annexure VIII-b 139
determined and paid in accordance with Sub-Clause 59.4.
Production of Vouchers
58.3 The Contractor shall produce to the Engineer all quotations,
invoices, vouchers and accounts or receipts in connection with
expenditure in respect of Provisional Sums, except where work is
valued in accordance with rates or prices set out in the Tender.
Nominated Subcontractors
Definition of “Nominated Subcontractor”
59.1 All specialists, merchants, tradesmen and others executing any
work or supplying any goods, materials, Plant or services for
which Provisional Sums are included in the Contract, who may
have been or be nominated or selected or approved by the
Employer or the Engineer, and all persons to whom by virtue of
the provisions of the Contract the Contractor is required to
subcontract shall, in the execution of such work or the supply of
such goods, materials, Plant or services, be deemed to be
subcontractors to the Contractor and are referred to in this
Contract as "nominated Subcontractors".
Nominated Subcontractors; Objection to Nomination
59.2 The Contractor shall not be required by the Employer or the
Engineer, or be deemed to be under any obligation, to employ
any nominated Subcontractors against whom the Contractor may
raise reasonable objection, or who declines to enter into a
subcontract with the Contractor containing provisions:
(a) that in respect of the work, goods, materials, Plant or services
the subject of the subcontract, the nominated Subcontractor will
undertake towards the Contractor such obligations and liabilities
as will enable the Contractor to discharge his own obligations
and liabilities towards the Employer under the terms of the
Contract and will save harmless and indemnify the Contractor
from and against the same and from all claims, proceeding,
damages, costs, charges and expenses whatsoever arising out of
or in connection therewith, or arising out of or in connection with
any failure to perform such obligations or to fulfil such liabilities,
and
(b) that the nominated Subcontractor will save harmless and
indemnify the Contractor from and against any negligence by the
nominated subcontractor, his agents, workmen and servants and
from and against any misuse by him or them of any Temporary
Works provided by the Contractor for the purposes of the
Contract and from all claims as aforesaid.
Design Requirements to be Expressly Stated
59.3 If in connection with any Provisional Sum the services to be
provided included any matter of design or specification of any
part of the Permanent Works or of any Plant to be incorporated
therein, such requirement shall be expressly stated in the Contract
and shall be included in any nominated Subcontract. The
Annexure VIII-b 140
nominated Subcontract shall specify that the nominated
Subcontractor providing such services will save harmless and
indemnify the Contractor from and against the same and from all
claims, proceedings, damages, costs, charges and expenses
whatsoever arising out of or in connection with any failure to
perform such obligations or to fulfil such liabilities.
Payments to Nominated Subcontractors
59.4 For all work executed or goods, materials, Plant or services
supplied by any nominated Subcontractor, the Contractor shall be
entitled to:
(a) the actual price paid or due to be paid by the Contractor, on
the instructions of the Engineer, and in accordance with the
Subcontract;
(b) in respect of all labour supplied by the contractor, the sums, if
any, entered in the Bill of Quantities or, if instructed by the
Engineer pursuant to paragraph (a) of Sub-Clause 58.2, as may
be determined in accordance with Clause 52; and
(c) in respect of all other charges and profit, a sum being a
percentage rate of the actual price paid or due to be paid
calculated, where provision has been made in the Bill of
Quantities for a rate to be set against the relevant Provisional
Sum, at the rate inserted by the Contractor against that item or,
where no such provision has been made, at the rate inserted by
the Contractor in the Appendix to Tender and repeated where
provision for such is made in a special item provided in the Bill
of Quantities for such purpose
Certification of Payments to Nominated Subcontractors
59.5 Before issuing, under Clause 60, any certificate, which includes
any payment in respect of work done or goods, materials, Plant
or services supplied by any nominated Subcontractor, the
Engineer shall be entitled to demand from the Contractor
reasonable proof that all payments, less retentions, included in
previous certificates in respect of the work or goods, materials,
Plant or services of such nominated Subcontractor have been
paid or discharged by the Contractor. If the Contractor fails to
supply such proof then, unless the Contractor:
(a) satisfies the Engineer in writing that he has reasonable cause
for withholding or refusing to make such payments, and
(b) produces to the Engineer reasonable proof that he has so
informed such nominated Subcontractor in writing, the Employer
shall be entitled to pay to such nominated Subcontractor direct,
upon the certificate of the Engineer, all payments, less retentions,
provided for in the nominated Subcontract, which the Contractor
has failed to make to such nominated Subcontractor and to
Annexure VIII-b 141
deduct by way of set-off the amount so paid by the Employer
from any sums due or to become due from the Employer to the
Contractor.
Provided that, where the Engineer has certified and the Employer
has paid direct as aforesaid, the Engineer shall, in issuing any
further certificate in favour of the Contractor, deduct from the
amount thereof the amount so paid, direct as aforesaid, but shall
not withhold or delay the issue of the certificate itself when due
to be issued under the terms of the Contract.
Certificates and Payment
Monthly Statements
60.1 The Contractor shall submit to the Engineer after the end of each
month six copies, each signed by the Contractor's representative
approved by the Engineer in accordance with Sub-Clause 15.1, of
a statement, in such form as the Engineer may from time to time
prescribe, showing the amounts to which the Contractor
considers himself to be entitled up to the end of the month in
respect of:
(a) the value of the Permanent Works executed,
(b) any other items in the Bill of Quantities including those for
Contractor's Equipment, Temporary Works, dayworks and the
like,
(c) the percentage of the invoice value of listed materials, all as
stated in the Appendix to Tender, and Plant delivered by the
Contractor on the Site for incorporation in the Permanent Works
but not incorporated in such Works,
(d) adjustments under Clause 70, and
(c) any other sum to which the Contractor may be entitled under
the Contract or otherwise.
Monthly Payments
60.2 The Engineer shall, within 15 days of receiving such statement,
deliver to the Employer an Interim Payment Certificate stating
the amount of payment to the Contractor which the Engineer
considers due and payable in respect of such statement, subject:
(a) firstly, to the retention of the amount calculated by applying
the Percentage of Retention stated in the Appendix to Tender, to
the amount to which the Contractor is entitled under paragraphs
(a), (b), (c) and (e); of Sub-Clause 60.1 until the amount so
retained reaches the Limit of Retention Money stated in the
Appendix to Tender, and
(b) secondly, to the deduction, other than pursuant to Clause 47,
Annexure VIII-b 142
of any sums which may have become due and payable by the
Contractor to the Employer.
Provided that the Engineer shall not be bound to certify any
payment under this Sub-Clause if the net amount thereof, after all
retentions and deductions, would be less than the Minimum
Amount of Interim Payment Certificates stated in the Appendix
to Tender.
Notwithstanding the terms of this Clause or any other Clause of
the Contract no amount will be certified by the Engineer for
payment until the performance security, if required under the
Contract, has been provided by the Contractor and approved by
the Employer.
Payment of Retention Money
60.3 (a) Upon the issue of the Taking-Over Certificate with respect to
the whole of the Works, one half of the Retention Money, or
upon the issue of a Taking-Over Certificate with respect to a
Section or part of the Permanent Works only such proportion
thereof as the Engineer determines having regard to the relative
value of such Section or part of the Permanent Works, shall be
certified by the Engineer for payment to the Contractor.
(b) Upon the expiration of the Defects Liability Period for the
Works the other half of the Retention Money shall be certified by
the Engineer for payment to the Contractor. Provided that, in the
event of different Defects Liability Periods having become
applicable to different Sections or parts of the Permanent Works
pursuant to Clause 48, the expression "expiration of the Defects
Liability Period" shall, for the purposes of this Sub-Clause, be
deemed to mean the expiration of the latest of such periods.
Provided also that if at such time there shall remain to be
executed by the Contractor any work, instructed, pursuant to
Clauses 49 and 50, in respects of the Works, the Engineer shall
be entitled to withhold certification, until completion of such
work of so much of the balance of the Retention Money as shall,
in the opinion of the Engineer, represent the cost of the work
remaining to be executed.
Correction of Certificates
60.4 The Engineer may be any Interim Payment Certificate make any correction or modification in any previous Interim Payment Certificate which shall have been issued by him and shall have authority, if any work is not being carried out to his satisfaction, to omit or reduce the value of such work in any Interim Payment Certificate.
Statement at Completion
60.5 Not later than 84 days after the issue of the Taking-Over
Certificate in respect of the whole of the Works, the Contractor
shall submit to the Engineer six copies of a Statement at
Completion with supporting documents showing in detail, in the
form approved by the Engineer:
Annexure VIII-b 143
(a) the final value of all work done in accordance with the
Contract up to the date stated in such Taking-Over Certificate.
(b) any further sums which the Contractor considers to be due,
and
(c) an estimate of amounts which the Contractor considers will
become due to him under the Contract.
The estimated amounts shall be shown separately in such
Statement at Completion. The Engineer shall certify payment in
accordance with Sub-Clause 60.2.
Final Statement 60.6 Not later than 56 days after the issue of the Defects Liability
Certificate pursuant to Sub-Clause 62.1, the Contractor shall
submit to the Engineer for consideration six copies of a draft
final statement with supporting documents showing in detail, in
the form approved by the Engineer:
(a) the value of all work done in accordance with the Contract,
and
(b) any further sums which the Contractor considers to be due to
him under the Contract or otherwise. If the Engineer disagrees
with or cannot verify any part of the draft final statement, the
Contractor shall submit such further information as the Engineer
may reasonably require and shall make such changes in the draft
as may be agreed between them. The Contractor shall then
prepare and submit to the Engineer the final statement as agreed
(for the purposes of these Conditions referred to as the "Final
Statement").
If, following discussions between the Engineer and the
Contractor and any changes to the draft final statement which
may be agreed between them, it becomes evident that a dispute
exists, the Engineer shall deliver to the Employer an Interim
Payment Certificate for those parts of the draft final statement, if
any, which are not in dispute. The dispute may then be settled in
accordance with Clause 67.
Discharge 60.7 Upon submission of the Final Statement, the Contractor shall
give to the Employer, with a copy to the Engineer, a written
discharge confirming that the total of the Final Statement
represents full and final settlement of all monies due to the
Contractor arising out of or in respect of the Contract. Provided
that such discharge shall become effective only after payment
due under the Final Payment Certificate issued pursuant to Sub-
Clause 60.8 has been made and the performance security referred
to in Sub-Clause 10.1, if any, has been returned to the Contractor.
Final Payment 60.8 Within 28 days after receipt of the Final Statement, and the
Annexure VIII-b 144
Certificate written discharge the Engineer shall issue to the Employer (with
a copy to the Contractor) a Final Payment Certificate stating:
(a) the amount which, in the opinion of the Engineer, is finally
due under the Contract or otherwise, and
(b) after giving credit to the Employer for all amounts previously
paid by the Employer and for all sums to which the Employer is
entitled other than under Clause 47, the balance, if any, due from
the Employer to the Contractor or from the Contractor to the
Employer as the case may be.
Cessation of Employer’s Liability
60.9 The Employer shall not be liable to the Contractor for any matter
or thing arising out of or in connection with the Contract or
execution of the Works, unless the Contractor shall have included
a claim in respect thereof in his Final Statement and (except in
respect of matters or things arising after the issue of the Taking-
Over Certificate in respect of the whole of the Works) in the
Statement at Completion referred to in Sub-Clause 60.5.
Time for Payment
60.10 The amount due to the Contractor under any Interim Payment
Certificate issued by the Engineer pursuant to this Clause or to
any other term of the Contract, shall subject to Clause 47, be paid
by the Employer to the Contractor within 28 days after such
Interim payment Certificate has been delivered to the Employer,
or in the case of the Final Payment Certificate referred to in Sub-
Clause 60.8, within 56 days after such Final Payment Certificate
has been delivered to the Employer. In the eve of the failure of
the Employer to make payment within the times stated, the
Employer shall pay to the Contractor interest at the rate stated in
the Appendix to Tender upon all sums unpaid from the date by
which the same should have been paid. The provision of this
Sub-Clause are without prejudice to the Contractor’s entitlement
under Clause 69 or otherwise.
Approval only by Defects Liability Certificate
61.1 Only the Defects Liability Certificate, referred to in Clause 62,
shall be deemed constitute approval of the Works.
Defects Liability Certificates
62.1 The Contract shall not be considered as completed until a Defects
Liability Certificate shall have been signed by the Engineer and
delivered to the Employer with a copy to the Contractor, stating
the date on which the Contractor shall have completed his
obligations to execute and complete the Works and remedy any
defects therein to the Engineer’s satisfaction. The Defects
Liability Certificate shall be given by the Engineer within 28
days after the expiration of the Defect Liability Period, or, if
different defects liability periods shall become applicable to
different Sections or parts of the Permanent Works, the
Annexure VIII-b 145
expiration of the late such period, or as soon thereafter as any
works instructed, pursuant to Clauses 40 and 50, have been
completed to the satisfaction of the Engineer. Provided that the
issue of the Defects Liability Certificate shall not be a condition
precedent to payment to the Contractor of the second portion of
the Retention Money in accordance with the conditions set out in
Sub-Clause 60.3.
Unfulfilled Obligations
62.2 Notwithstanding the issue of the Defects Liability Certificate the
Contractor and the Employer shall remain liable for the
fulfilment of any obligation incurred under the provisions of the
Contract prior to the issue of the Defects Liability Certificate
which remains unperformed at the time such Defects Liability
Certificate is issued and, for the purposes of determining the
nature and extent to any such obligation, the Contract shall be
deemed to remain in force between the parties to the Contract.
Remedies
Default of Contractor
63.1 If the Contractor is deemed by law unable to pay his debts as
they fall due, or enters into voluntary or involuntary bankruptcy,
liquidation or dissolution (other than a voluntary liquidation for
the purposes of amalgamation or reconstruction), or becomes
insolvent, or makes an arrangement with, or assignment in favour
of, his creditors, or agree to carry out the Contract under a
committee of inspection of his creditors, or if a receiver,
administrator, trustee or liquidator is appointed over any
substantial part of his assets, or if, under any law or regulation
relating to reorganization, arrangement or readjustment of debts,
proceedings are commenced against the Contractor or resolutions
passed in connection with dissolution or liquidation or if any
steps are taken to enforce any security interest over a substantial
part of the assets of the Contractor, or if any act is done or event
occurs with respect to the Contractor or his assets which, under
any applicable law has a substantially similar effect to any of the
foregoing acts or events, or if the Contractor has contravened
Sub-Clause 3.1, or has an execution levied on his goods, or if the
Engineer certifies to the Employer, with a copy to the Contractor,
that, in his opinion, the Contractor:
(a) has repudiated the Contract,
(b) without reasonable excuse has failed
(i) to commence the Works in accordance with Sub-
Clause 41.1, or
(ii) to proceed with the Works, or any Section thereof,
within 28 days after receiving notice pursuant to Sub-
Clause 46.1,
(c) has failed to comply with a notice issued pursuant to Sub-
Clause 37.4 or an instruction issued pursuant to Sub-Clause 39.1
Annexure VIII-b 146
within 28 days after having received it,
(d) despite previous warning from the Engineer, in writing, is
otherwise persistently or flagrantly neglecting to comply with
any of his obligations under the Contract, or
(e) has contravened Sub-Clause 4. 1, then the Employer may,
after giving 14 days' notice to the Contractor, enter upon the Site
and the Works and terminate the employment of the Contractor
without thereby releasing the Contractor from any of his
obligations or liabilities under the Contract, or affecting the rights
and authorities conferred on the Employer or the Engineer by the
Contract, and may himself complete the Works or may employ
any other contractor to complete the Works. The Employer or
such other contractor may use for such completion so much of
the Contractor's Equipment, Temporary Works and materials as
he or they may think proper.
Valuation at Date of Termination
63.2 The Engineer shall, as soon as may be practicable after any such entry and termination by the Employer, fix and determine ex part, or by or after reference to the parties or after such investigation or enquiries as he may think fit to make or institute, and shall certify:
(a) what amount (if any) had, at the time of such entry and
termination, been reasonably earned by or would reasonably
accrue to the Contractor in respect of work then actually done by
him under the Contract, and
(b) the value of any of the said unused or partially used materials,
any Contractor's Equipment and any Temporary Works.
Payment after Termination
63.3 If the Employer terminates the Contractor's employment under
this Clause, he shall not be liable to pay to the Contractor any
further amount (including damages) in respect of the Contract
until the expiration of the Defects Liability Period and there after
until the costs of execution, completion and remedying of any
defects, damages for delay in completion (if any) and all other
expenses incurred by the Employer have been ascertained and the
amount thereof certified by the Engineer. The Contractor shall
then be entitled to receive only such sum (if any) as the Engineer
may certify would have been payable to him upon due
completion by him after deducting the said amount. If such
amount exceeds the sum which would have been payable to the
Contractor on due completion by him, then the Contractor shall,
upon demand, pay to the Employer the amount of such excess
and it shall be deemed a debt due by the Contractor to the
Employer and shall be recoverable accordingly.
Annexure VIII-b 147
Assignment of Benefit of Agreement
63.4 Unless prohibited by law, the Contractor shall, if so instructed by
the Engineer within 14 days of such entry and termination
referred to in Sub-Clause 63.1, assign to the Employer the benefit
of any agreement for the supply of any goods or materials or
services and/or for the execution of any work for the purposes of
the Contract, which the Contractor may have entered into.
Urgent Remedial Works
64.1 If, by reason of any accident, or failure, or other event occurring
to, in, or in connection with the Works, or any part thereof, either
during the execution of the Works, or during the Defects
Liability Period, any remedial or other work is, in the opinion of
the Engineer, urgently necessary for the safety of the Works and
the Contractor is unable or unwilling at once to do such work, the
Employer shall be entitled to employ and pay other persons to
carry out such work as the Engineer may consider necessary. If
the work or repair so done by the Employer is work which, in the
opinion of the Engineer, the Contractor was liable to do at his
own cost under the Contract, then all costs consequent thereon or
incidental thereto shall, after due consultation with the Employer
and the Contractor, be determined by the Engineer and shall be
recoverable from the Contractor by the Employer, and may be
deducted by the Employer from any monies due or to become
due to the Contractor and the Engineer shall notify the Contractor
accordingly, with a copy to the Employer. Provided that the
Engineer shall, as soon after the occurrence of any such
emergency as may be reasonably practicable, notify the
Contractor thereof.
Special Risks
No Liability for Special Risks
65.1 The Contractor shall be under no liability whatsoever in
consequence of any of the special risks referred to in Sub-Clause
65.2, whether by way of indemnity or otherwise, for or in respect
of:
(a) destruction of or damage to the Works, save to work
condemned under the provisions of Clause 39 prior to the
occurrence of any of the said special risks,
(b) destruction of or damage to property, whether of the
Employer or third parties, or
(c) injury or loss of life.
Special Risks 65.2 The special risks are:
(a) the risks defined under paragraphs (a), (c), (d) and (e) of Sub-
Clause 20.4, and
(b) the risks defined under paragraph (b) of Sub-Clause 20.4
Annexure VIII-b 148
insofar as these relate to the country in which the Works are to be
executed.
Damage to Works by Special Risks
65.3 If the Works or any materials or Plant on or near or in transit to
the Site, or any of the Contractor's Equipment, sustain destruction
or damage by reason of any of the said special risks, the
Contractor shall be entitled to payment in accordance with the
Contract for any Permanent Works duly executed and for any
materials or Plant so destroyed or damaged and, so far as may be
required by the Engineer or as may be necessary for the
completion of the Works, to payment for:
(a) rectifying any such destruction or damage to the Works, and
(b) replacing or rectifying such materials or Contractor's
Equipment, and the Engineer shall determine an addition to the
Contract Price in accordance with Clause 52 (which shall in the
case of the cost of replacement of Contractor's Equipment
include the fair market value thereof as determined by the
Engineer) and shall notify the Contractor accordingly, with a
copy to the Employer.
Projectile, Missile
65.4 Destruction, damage, injury or loss of life caused by the
explosion or impact, whenever and wherever occurring, of any
mine, bomb, shell, grenade, or other projectile, missile,
ammunition, or explosive of war, shall be deemed to be a
consequence of the said special risks.
Increased Costs arising from Special Risks
65.5 Save to the extent that the Contractor is entitled to payment under
any other provision of the Contract, the Employer shall repay to
the Contractor any costs of the execution of the Works (other
than such as may be attributable to the cost of reconstructing
work condemned under the provisions of Clause 39 prior to the
occurrence of any special risk) which are howsoever attributable
to or consequent on or the result of or in any way whatsoever
connected with the said special risks, subject however to the
provisions in this Clause hereinafter contained in regard to
outbreak of war, but the Contractor shall, as soon as any such
cost comes to his knowledge, forthwith notify the Engineer
thereof. The Engineer shall, after due consultation with the
Employer and the Contractor determine the amount of the
Contractor's costs in respect thereof which shall be added to the
Contract Price and shall notify the Contractor accordingly, with a
copy to the Employer.
Outbreak of War 65.6 If, during the currency of the Contract, there is an outbreak of
war, whether war is declared or not, in any part of the world
which, whether financially or otherwise, materially affects the
execution of the Works, the Contractor shall, unless and until the
Contract is terminated under the provisions of this Clause,
Annexure VIII-b 149
continue to use his best endeavours to complete the execution of
the Works. Provided that the Employer shall be entitled at any
time after such outbreak of war, to terminate the Contract by
giving notice to the Contractor and upon such notice being given,
the Contract shall, except as to the rights of the parties under this
Clause and Clause 67, terminate, but without prejudice to the
rights of either party in respect of any antecedent breach thereof.
Removal of Contractor’s Equipment on Termination
65.7 If the Contract is terminated under the provisions of Sub-Clause
65.6, the Contractor shall, with all reasonable dispatch, remove
from the Site all Contractor's Equipment and shall give similar
facilities to his Subcontractors to do so.
Payment if Contract Terminated
65.8 If the Contract is terminated as aforesaid, the Contractor shall be
paid by the Employer, insofar as such amounts or items have not
already been covered by payments on account made to the
Contractor, for all work executed prior to the date of termination
at the rates and prices provided in the Contract and in addition:
(a) the amounts payable in respect of any preliminary items
referred to in the Bill of Quantities, so far as the work or service
comprised therein has been carried out or performed, and a
proper proportion of any such items which have been partially
carried out or performed;
(b) the cost of materials, Plant or goods reasonably ordered for
the Works which have been delivered to the Contractor or of
which the Contractor is legally liable to accept delivery, such
materials, Plant or goods becoming the property of the Employer
upon such payments being made by him;
(c) a sum being the amount of any expenditure reasonably
incurred by the Contractor in the expectation of completing the
whole of the Works insofar as such expenditure has not been
covered by any other payments referred to in this Sub-Clause;
(d) any additional sum payable under the provisions of Sub-
Clauses 65.3 and 65.5,
(e) such proportion of the cost as may be reasonable, taking into
account payments made or to be made for work executed, of
removal of Contractor's Equipment under Sub-Clause 65.7 and, if
required by the Contractor, return thereof to the Contractor's
main plant yard in his country of registration or to other
destination, at no greater cost; and
(f) the reasonable cost of repatriation of all the Contractor's staff
and workmen employed on or in connection with the Works at
the time of such termination.
Annexure VIII-b 150
Provided that against any payment due from the Employer under
this Sub-Clause, the Employer shall be entitled to be credited
with any outstanding balances due from the Contractor for
advances in respect of Contractor's Equipment, materials and
Plant and any other sums which, at the date of termination, were
recoverable by the Employer from the Contractor under the terms
of the Contract. Any sums payable under this Sub-Clause shall,
after due consultation with the Employer and the Contractor, be
determined by the Engineer who shall notify the Contractor
accordingly, with a copy to the Employer.
Release from Performance
Payment in Event of Release from Performance
66.1 If any circumstance outside the control of both parties arises after
the issue of the Letter of Acceptance which renders it impossible
or unlawful for either or both parties to fulfil his or their
contractual obligations, or under the law governing the Contract
the parties are released from further performance, then the parties
shall be discharged from the Contract, except as to their rights
under this Clause and Clause 67 and without prejudice to the
rights of either party in respect of any antecedent breach of the
Contract, and the sum payable by the Employer to the Contractor
in respect of the work executed shall be the same as that which
would have been payable under Clause 65 if the Contract had
been terminated under the provisions of Clause 65.
Settlement of Disputes
Engineer’s Decision
67.1 If a dispute of any kind whatsoever arises between the Employer
and the Contractor in connection with, or arising out of, the
Contract or the execution of the Works, whether during the
execution of the Works or after their completion and whether
before or after repudiation or other termination of the Contract,
including any dispute as to any opinion, instruction,
determination, certificate or valuation of the Engineer, the matter
in dispute shall, in the first place, be referred in writing to the
Engineer, with a copy to the other party. Such reference shall
state that it is made pursuant to this Clause. No later than the
eighty-fourth day after the day on which he received such
reference the Engineer shall give notice of his decision to the
Employer and the Contractor. Such decision shall state that it is
made pursuant to this Clause.
Unless the Contract has already been repudiated or terminated,
the Contractor shall, in every case, continue to proceed with the
Works with all due diligence and the Contractor and the
Employer shall give effect forthwith to every such decision of the
Engineer unless and until the same shall be revised, as hereinafter
provided, in an amicable settlement or an arbitral award.
Annexure VIII-b 151
If either the Employer or the Contractor be dissatisfied with any
decision of the Engineer, or if the Engineer fails to give notice of
his decision on or before the eighty-fourth day after the day on
which he received the reference, then either the Employer or the
Contractor may, on or before the seventieth day after the day on
which he received notice of such decision, or on or before the
seventieth day after the day on which the said period of 84 days
expired, as the case may be, give notice to the other party, with a
copy for information to the Engineer, of his intention to
commence arbitration, as hereinafter provided, as to the matter in
dispute. Such notice shall establish the entitlement of the party
giving the same to commence arbitration, as hereinafter provided,
as to such dispute and, subject to Sub-Clause 67.4, no arbitration
in respect thereof may be commenced unless such notice is
given.
If the Engineer has given notice of his decision as to a matter in
dispute to the Employer and the Contractor and no notice of
intention to commence arbitration as to such dispute has been
given by either the Employer or the Contractor on or before the
seventieth day after the day on which the parties received notice
as to such decision from the Engineer, the said decision shall
become final and binding upon the Employer and the Contractor.
Amicable Settlement
67.2 Where notice of intention to commence arbitration as to a dispute
has been given in accordance with Sub-Clause 67.1, arbitration
of such dispute shall not be commenced unless an attempt has
first been made by the parties to settle such dispute amicably.
Provided that, unless the parties otherwise agree, arbitration may
be commenced on or after the fifty-sixth day after the day on
which notice of intention to commence arbitration of such
dispute was given, whether or not any attempt at amicable
settlement thereof has been made.
Annexure VIII-b 152
Arbitration 67.3 Any dispute in respect of which:
(a) the decision, if any, of the Engineer has not become final and
binding pursuant to Sub-Clause 67.1, and
(b) amicable settlement has not been reached within the period
stated in Sub-Clause 67.2 shall be finally settled, unless
otherwise specified in the Contract, under the Rules of
Conciliation and Arbitration of the International Chamber of
Commerce by one or more arbitrators appointed under such
Rules. The said arbitrator/s shall have full power to open up,
review and revise any decision, opinion, instruction,
determination, certificate or valuation of the Engineer related to
the dispute.
Neither party shall be limited in the proceedings before such
arbitrator/s to the evidence or arguments put before the Engineer
for the purpose of obtaining his said decision pursuant to Sub-
Clause 67.1. No such decision shall disqualify the Engineer from
being called as a witness and giving evidence before the
arbitrator/s on any matter whatsoever relevant to the dispute.
Arbitration may be commenced prior to or after completion of
the works, provided that the obligations of the Employer, the
Engineer and the Contractor shall not be altered by reason of the
arbitration being conducted during the progress of the Works.
Failure to Comply with Engineer’s Decision
67.4 Where neither the Employer nor the Contractor has given notice
of intention to commence arbitration of a dispute within the
period stated in Sub-Clause 67.1 and the related decision has
become final and binding, either party may, if the other party
fails to comply with such decision, and without prejudice to any
other rights it may have, refer the failure to arbitration in
accordance with Sub-Clause 67.3. The provisions of Sub-Clauses
67.1 and 67.2 shall not apply to any such reference.
Notices
Notice to Contractor
68.1 All certificates, notices or instructions to be given to the
Contractor by the Employer or the Engineer under the terms of
the Contract shall be sent by post, cable, telex or facsimile
transmission to or left at the Contractor’s principal place of
business or such other address as the Contractor shall nominate
for that purpose.
Notice to Employer and Engineer
68.2 Any notice to be given to the Employer or to the Engineer under
the terms of the Contract shall be sent by post, cable, telex or
facsimile transmission to or left at the respective address as
nominated for that purpose in Part II of these Conditions.
Annexure VIII-b 153
Changes of Address
68.3 Either party may change a nominated address to another address
in the country where the Works are being executed by prior
notice to the other party, with a copy to the Engineer, and the
Engineer may do so by prior notice to both parties.
Default of Employer
Default of Employer
69.1 In the event of the Employer:
(a) failing to pay to the Contractor the amount due under any
certificate of the Engineer within 28 days after the expiry of the
time stated in Sub-Clause 60.10 within which payment is to be
made, subject to any deduction that the Employer is entitled to
make under the Contract,
(b) interfering with or subtracting or refusing any required
approval to the issue of any such certificate.
(c) becoming bankrupt or, being a company, going into
liquidation, other than for the purpose of a scheme of
reconstruction or amalgamation, or
(d) giving notice to the Contractor that for unforeseen economic
reasons it is impossible for him to continue to meet his
contractual obligations, the Contractor shall be entitled to
terminate is employment under the Contract by giving notice to
the Employer, with a copy to the Engineer. Such termination
shall take effect 14 days after the giving of the notice.
Removal of Contractor’s Equipment
69.2 Upon the expiry of the 14 days notice referred to in Sub-Clause
69.1, the Contractor shall, notwithstanding the provisions of Sub-
Clause 54.1, with all reasonable dispatch, remove from the Site
all Contactor’s Equipment brought by him thereon.
Payment on Termination
69.3 In the event of such termination the Employer shall be under the
same obligations to the Contractor in regard to payment as if the
Contractor had been terminated under the provisions of Clause
65, but, in addition to the payments specified in Sub-Clause 65.8,
the Employer shall pay to the Contractor the amount of any loss
or damage to the Contractor arising out of or in connection with
or by consequence of such termination.
Contractor’s Entitlement to Suspend Work
69.4 Without prejudice to the Contactor’s entitlement to interest under
Sub-Clause 60.10 and to terminate under Sub-Clause 69.1, the
Contactor may, if the Employer fails to pay the Contractor the
amount due under any certificate of the Engineer within 28 days
after the expiry of the time stated in Sub-Clause 60.10 within
which payment is to be made, subject to any deduction that the
Employer is entitled to made under the Contractor, after giving
28 days prior notice to the Employer, with a copy to the
Annexure VIII-b 154
Engineer, suspend work or reduce the rate of work.
If the Contractor suspends work or reduces the rate of work in
accordance with the provisions of this Sub-Clause and thereby
suffers delay or incurs costs the Engineer shall, after due
consultation with the Employer and the Contractor, determine:
(a) any extension of time to which the Contractor is entitled
under Clause 44, and
(b) the amount of such costs, which shall be added to the
Contract Price, and shall notify the Contractor accordingly, with
a copy to the Employer.
Resumption of Work
69.5 Where the Contractor suspends work or reduces the rate of work,
having given notice in accordance with Sub-Clause 69.4, and the
Employer subsequently pays the amount due, including interest
pursuant to Sub-Clause 60.10, the Contractor’s entitlement under
Sub-Clause 69.1 shall, if notice of termination has not been
given, lapse and the Contractor shall resume normal working as
soon as is reasonably possible.
Changes in Costs and Legislation
Increase or Decrease of Cost
70.1 There shall be added to or deducted from the Contract Price such
sums in respect of rise or fall in the cost of labour and/or
materials or any other matters affecting the cost of the execution
of the Works as may be determined in accordance with Part II of
these Conditions.
Subsequent Legislation
70.2 If, after the date 28 days prior to the latest date for submission of
tenders for the Contract there occur in the country in which the
Works are being or are to be executed changes to any National or
State Statute, Ordinance, Decree or other Law or any regulation
or bye-law of any local or other duly constituted authority, or the
introduction of any such State Statute, Ordinance, Decree, Law,
regulation or bye-law which causes additional or reduced cost to
the Contractor, other than under Sub-Clause 70.1, in the
execution of the Contract, such additional or reduced cost shall,
after due consultation with the Employer and the Contractor, be
determined by the Engineer and shall be added to or deducted
from the Contract Price and the Engineer shall notify the
Contractor accordingly, with a copy to the Employer.
Currency and Rates of Exchange
Currency Restrictions
71.1 If, after the date 7 days prior to the latest date for submission of
tenders for the Contract, the Government or authorised agency of
the Government of the country in which the Works are being or
are to be executed imposes currency restrictions and/or transfer
Annexure VIII-b 155
of currency restrictions in relation to the currency or currencies in
which the Contract Price is to be paid, the Employer shall
reimburse any loss or damage to the Contractor arising there
from, without prejudice to the right of the Contractor to exercise
any other rights or remedies to which he is entitled in such event.
Rates of Exchange
72.1 Where the Contract provides for payment in whole or in part to
be made to the Contractor in foreign currency or currencies, such
payment shall not be subject to variations in the rate or rates of
exchange between such specified foreign currency or currencies
and the currency of the country in which the Works are to be
executed.
Currency Proportions
72.2 Where the Employer has required the Tender to be expressed in a
single currency but with payment to be made in more than one
currency and the Contractor has stated the proportions or
amounts of other currency or currencies in which he requires
payment to be made, the rate or rates of exchange applicable for
calculating the payment of such proportions or amounts shall,
unless otherwise stated in Part II of these Conditions, be those
prevailing, as determined by the Central Bank of the country in
which the Works are to be executed, on the date 28 days prior to
the latest date for the submission of tenders for the Contract, as
has been notified to the Contractor by the Employer prior to the
submission of tenders or as provided for in the Tender.
Currencies of Payment for Provisional Sums
72.3 Where the Contract provides for payment in more than one
currency, the proportions or amounts to be paid in foreign
currencies in respect of Provisional Sums shall be determined in
accordance with the principles set forth in Sub-Clause 72.1 and
72.2 as and when these sums are utilized in whole or in part in
accordance with the provisions of Clauses 58 and 59.
Annexure VIII-b 156
REFERENCE TO PART II
As stated in the Foreword at the beginning of this
document, the FIDIC Conditions comprise both Part I
and Part II. Certain Clauses, namely Sub-Clauses 1.1
paragraph (a) (i) and (iv), 5.1 (part)m 14.1, 14.3, 68.2
and 70.1 must include additional wording in Part II for
the Conditions to be complete. Other Clauses may
required additional wording to supplement Part I or to
cover particular circumstances or the type of work
(dredging is an example).
Part II Conditions of Particular Application with
guidelines for the preparation of Part II are printed in a
separate bound document.